Reeg v. Adams

113 Wis. 175 | Wis. | 1902

The following opinion was filed November 29, 1901:

BaedeeN, J.

This case must be determined upon the record, no bill of exceptions having been settled. The trial court decided that the undertaking set out in the first cause of action was valid and sufficient, and did not require reformation. If this conclusion is correct, then it follows that no cause of action was stated in the first count. The alleged imperfection in the undertaking consisted in the omission of some word identifying the person who should at all times render himself amenable to the process of the court. The hiatus can be filled from a mere inspection of the paper. It first gives the title of the case, and recites that Adams, the defendant, had been arrested. Then follows a further recital that Adams, as principal, and the other defendants undertake “that the said-shall at all times render himself amenable to the processes of the court,” etc. , The instrument itself furnishes the means of supplying the missing word with absolute certainty. Any person of ordinary intelligence would have no difficulty in filling the blank without the aid -of extraneous evidence. The case comes clearly within those of curable uncertainty where the blank may be filled from the instrument itself. 2 Parsons, Cont. 563; 1 Addison, Cont. (7th Ed.), 166. See State v. Schwartz, 64 Wis. 432, and cases cited; Mississippi River L. Co. v. Wheelihan, 94 Wis. 96; Ellis v. Barron Co. 111 Wis. 576. Tbe instrument not needing reformation, tbe effort to state a cause of action for its reformation failed, and tbe defendants are wrong in tbe conclusion that a cause of action in equity was stated. Tbe demurrer should therefore have been sustained to tbe first cause of action.

Tbe question then arises whether tbe error is so substantial as that tbe judgment must be reversed. Sec. 2829, Stats. 1898, says that tbe court shall disregard any error that shall not affect tbe substantial rights of the adverse party, and that no judgment shall be reversed by reason of such error. It appears from the record that after tbe demurrer was overruled tbe defendants interposed an answer, and that a jury trial was bad, and a verdict rendered for tbe plaintiff. This could only be upon tbe theory that tbe second count in tbe complaint stated a cause of action at law, and was the only cause of action appearing from tbe complaint. We are inclined to agree with this view, and therefore bold that tbe action is one at law, and was properly disposed of by tbe court and jury. Tbe failure of tbe court to sustain tbe demurrer to tbe first count in no way operated to tbe prejudice of defendants. They bad tbe full privilege to litigate tbe case on tbe merits, and to make their full defense, if they had one.

When we come to inspect tbe complaint to determine whether it will stand tbe test of tbe demurrer, we find a ■complete cause of action at law stated, unless it is susceptible to tbe objections hereinafter to be considered. Tbe complaint in the second count sets out tbe action brought by plaintiff against Adams, bis arrest, tbe execution of the undertaking pursuant to sec. 2697, S. & B. Ann. Stats., and its delivery .to tbe sheriff, tbe release of Adams from arrest, and tbe filing of such undertaking by tbe plaintiff in tbe office of the clerk of tbe circuit court. Then follow allegations as to tbe rendition of the judgment against Adams, the issue and return of the property execution unsatisfied, the issue of the execution against the body and the return “Not found,” and the failure of the hail to produce their principal. The defendants argue that the complaint is demurrable, because it does not allege that the sheriff ever delivered the order of arrest with his return indorsed thereon, with a certified copy of the undertaking, to the plaintiff or his attorney. It is alleged that the undertaking was given, Adams was discharged from arrest, and the undertaking was filed in the office of the clerk of the circuit court by the plaintiff. The requirements of sec. 2702 are for the benefit of plaintiff and the sheriff. The service of the copy of the undertaking upon plaintiff is to advise him of the sureties, and if within ten days he does not serve notice that he does not accept the hail, he is deemed to have accepted it, and the sheriff is exonerated. When the plaintiff takes and files the undertaking, the plain inference is that he accepted the hail, unless it is made to appear that he notified the sheriff to the contrary.

The execution against the body was issued May 2nd, and returned “Not found” June 18th following. The defendants insist that no cause of action arises against them until the full sixty days named in the execution had expired. Sec. 2970, S. & B. Ann. Stats., in force at the time the execution was issued, provides that “every execution shall he made returnable within sixty days after its receipt hy the officer.” This applies to executions against the body as well as against property. In the recent case of Davelaar v. Blue Mound I. Co. 110 Wis. 470, we had occasion to consider a similar contention relative to a property execution. We then held that, if the officer acted in good faith, and upon sufficient knowledge of the financial condition of the defendant, he might return his execution before the sixty days had fully elapsed. ‘ We see no reason for making a different rule regarding executions against the body. They are both controlled by the same statute, and must be governed by the same rules, so far as tbe return of tbe same by tbe officer is concerned.

By the Court. — Tbe judgment is affirmed.

A motion for a rehearing was denied February 18, 1902.