10 Wis. 378 | Wis. | 1860
By the Court,
This action was commenced under the code, by Pratt, to recover the possession of personal property. The other two appellants signed the undertaking as sureties, according to section 117, and judgment having
In support of the objection, the following cases are cited: Hughs vs. Hughs, 4th Monr., 43; Dawson vs. Shaver, 1 Black., 204; Smith vs. Smith, 1 How., (Miss.,) 102; Ervine’s Appeal, 16 Penn. St. Rep., 256; and Brown vs. Hummell, 6 Barr, 86.
In the first of these cases the judgment was entered against the sureties on an injunction bond, under an act which had been decided unconstitutional twenty years before, which had” been acquiesced in without question.. The case was decided upon that ground, and the court intimate that were it res nova, their decision might have been different. In Dawson vs. Shaver, the proceeding was by motion upon notice against the sheriff and his sureties, for money collected and not paid over. The court held the statute constitutional, but that the parties would be entitled to make up an issue, and have a jury trial, as the act did not prohibit it. In Ervine’s Appeal it was held that the legislature had no authority to enact a law authorizing the orphan’s court to appoint a trustee to sell certain real estate, belonging to parties of full age and sui juris, against their consent, which is simply an affirmance of the general principle that no man shall be deprived of his property without due process of law, and was clearly right. And the case in Barr is no more than an assertion of the same general principle.
But I think this case is entirely different, and that the in
And I think it is no objection to this view to say that the undertaking might be forged. The decision is placed upon the fact that the undertaking, assuming it genuine, fairly amounts to a consent to the entry of judgment. And we think the validity of the law is to be tested on this assumption. And if correct in the position that the undertaking is a consent, the fact that it might be forged does not invalidate the law. A cognovit might be forged; an attorney might, without authority, consent to a judgment, or one person might, by collusion, be sued for another and consent to judgment; in all such cases the party wronged would undoubtedly be entitled to his remedy on a proper application to the court. But we think the possibility of such a forgery or false personation, does not invalidate the law authorizing judgments by consent The law proceeds on the assumption that the consent is genuine, and on that assumption its validity is to be determined.
Though this undertaking is not strictly a recognizance, yet we think it much in the nature of one. And the case of Gildersleeve vs. The People, 10 Barb., 35, where the question
But another objection is made, which is, that the judgment is erroneous, not being in the alternative for a return of the property or the value thereof, in case a return could not be had according to sec. 187 of the code. And in support of this position the case of Dwight vs. Enos, 5 Seld., 470, is relied on, which, it must be conceded, fully sustains it. But after a most careful examination of the matter, we are constrained to place a different construction upon this section from that given by the New York court of appeals in this case, so far as it relates to the judgment which may be taken by the defendant. The court there, after alluding to the'former provision of their Revised Statutes, which was the same as sec. 1, chap. 42, Gen. Laws, 1854, of this state, say that this left the defendant in such cases, “ entirely at the option” to take a judgment either for the return or the value, as he might see fit. They then proceed, “ The significant words then, "in case a return cannot be had ’ incorporated into sec. 277 of the code, are new. Are these words to be rejected as surplusage ? The words are clear and explicit, and have a plain and direct application to the subject matter of the section. - Some meaning I think should be given to them.” And accordingly, on the force of these words alone, the court held that this section of the code
If we look at the former provisions of the law, we think it
The court of appeals also relies on the provision of section 289 of their code, sec. 199 of ours, in relation to the form of execution for the delivery of personal or real property. But this seems to us to furnish no support for their construction, because it only shows that where the execution is for the return, it is in the alternative. This must, of course, be so. And if the defendant “ claims a return,” 14s judgment must be in the alternative, and his execution also. But does this form of the execution, which could only issue on such a'judgment, tend at all to show that the defendant was bound to have a judgment for a return whether he claimed it or not ? If it does, we are unable to see it, but think, on the contrary, that it is entirely consistent with our construction, which gives the defendant the right to elect, showing only what his execution would be, where he elected a return. If he did not claim a return, his judgment would be a personal judgment, and his execution would follow that.
We think, therefore, that section 1, chapter 42, laws of 1854, was not inconsistent with this section of the code, and being saved by section 365, was in force when this judgment
No other question being made, we think the judgment must be affirmed, with costs.