Prentiss v. Danaher

20 Wis. 311 | Wis. | 1866

Dixon, C. J.

The provision in section 2, ch. 862, Laws of 1860, that the statutes of the state that may at any time be in force relative to the circuit courts of the state, shall relate also to the county court of Milwaukee county, is a rule for the construction of statutes, and not an attempt by one legislature directly to restrict a future legislature to a particular mode of enactment in certain cases. It is not analogous to ,a clause declaring tbat an act shall not be repealed by a general law contravening its provisions, unless such purpose be expressly set forth in such law) as was the case in Kellogg v. Oshkosh, 14 Wis., 623; but is strictly analogous to the provisions of chapter 5 of the revised statutes, entitled, “ Of the construction of statutes.” If the provision in question is void for the reason stated, then all or nearly all the provisions of said chapter 5 are void for the same reason. But they are not. It has always been considered competent for the legislature to enact rules for the construction of statutes, present or future, and when it has done so, each succeeding legislature, unless a contrary intention is plainly manifested, is supposed to employ words and frame enactments with reference to such rules. Again, if this clause is not to be so construed as to increase the jurisdiction of the county court by a future act of the legislature increasing the jurisdiction of the circuit courts, as contended, still the act of 1864 (chap. 200, Laws of 1864,) does not increase the jurisdiction of the circuit courts. It does not confer upon the circuit courts power to hear and determine a new class of cases, but is simply a new mode of exercising a jurisdiction which they possessed at the time the county court was organized. There is, therefore, no want of jurisdiction in the county court.

The objection that there was another suit pending against the defendants as garnishees, in which they were served before the service in this action, was not taken in time, nor in the proper form. Instead of waiting until the trial, and reading the record in the other suit in evidence on the defense, the defendants should have moved at once, upon affidavits showing the facts, for a stay of proceedings in this action until the other was terminated, which, in a proper case, would have been granted.

If a partnership existed between the defendants and Power, it was special; and as the work was completed and the defendants had received all the money due upon the contract before the trial, judgment was properly rendered against them for tbe amount tben due to Power. The witness Taylor testifies that the defendants had frequently told him that their contract with Power was at an end; that they should deliver no more piles under it; that they had received from the railway company the ten per cent, reserved on the piles delivered; and that they had fully settled with the company and received pay for all the piles they had delivered to it. It is true that it does not appear that these things were done when this suit was commenced against them; but the statute authorizes the attachment in the hands of the garnishee of ‘‘ debts due or to become due ” against him (B. S., ch. 130, sec. 35), and it is enough that this debt is actually due when the trial is had and the judgment rendered.

The assignment of Power’s interest in the contract to Kneeland was clearly fraudulent, and void as against the plaintiff, a creditor of Power. And so was the assignment of the one half interest to Furlong, and the plaintiff was not obliged to work out his rights as a creditor through Furlong as a trustee for the use of Power. He may treat the pretended transfer as conveying no interest whatever to Furlong.

The testimony of the witness Blair, though not direct, was not irrelevant. It had a remote bearing upon the questions at issue, and was therefore competent.

The answer of the defendants was part of the record, and was properly read to the jury as evidence. If an answer contain admissions of fact beneficial to the plaintiff, he may read and rely upon such admissions, and that will not preclude him from disproving the answer in other respects, the same being controverted by a reply, or by operation of statute where no reply is required

The answer not having been made evidence by the plaintiff for all purposes or as to all its statements, the nonsuit was properly denied. In determining the motion, the court was to-look to the evidence offered in behalf of the plaintiff as well as the answer.

The motion for a new trial was not beard until tbe next term. It was “ upon tbe minutes” of tbe judge; and sucb a motion cannot be beard after tbe term at wbicli tbe cause is tried. R. S., cb. 132, sec. 16; Dunbar v. Hollinshead, 10 Wis., 505. It appears from tbe record, tbougb not from tbe ¡Minted case, that one ground of tbe motion was that tbe verdict was contrary to tbe evidence. But as tbe motion could not be beard at that term, it follows that no question as to tbe weight of evidence is before us, and that tbe motion was properly denied.

By the Court. — Judgment affirmed.