Selsby v. Redlon

19 Wis. 17 | Wis. | 1865

By the Court,

DixoN C. J.

It is possible that the declarations of the witness James K. Selsby were admissible on the ground that he was a vendor in possession of the property sold at the time they were made, but enough does not appear in the bill of exceptions to authorize us to so decide. It appears that the colt remained in his possession after the alleged sale to the plaintiff, but whether it was in his possession at the time the declarations were made does not distinctly appear. To warrant their admission on this ground, it should be clearly shown that he was in possession when the declarations were made. Grant v. Lewis, 14 Wis., 487. But though the declarations ought to have been rejected on this ground, still we think they were admissible on another. The witness was upon his cross-examination, and the questions put, if answered in the affirmative, or affirmatively proved by other witnesses, tended directly to contradict his testimony given on the examination in chief. It was a legitimate method of discrediting the witness. Starkie -on Ev., 288.

The objection to tbe docket of justice Joslin seems quite unfounded. Whether it contained the entry of the j udgment set up in the answer of the defendant was a fact to be ascertained by inspection of the docket after its introduction, and not one to be proved by oral evidence before the docket should be introduced.

At first we were inclined to the opinion that the question whether the execution was void or only voidable, was governed by the case of Mariner v. Coon, 16 Wis., 465 ; but upon further examination we are of opinion that it is not, and that the cases are essentially different.

In courts of record executions might lawfully issue after the expiration of two years from the rendition of the judgments, upon leave of the court. If issued without such leave they were irregular but not void. The authority to issue them existed. But in justices’ courts this was not so. Prior to the act of April 1,1861, Laws of 1861, c. 140, and the act of April 18, 1863, Laws of 1863, c. 286, a justice of the peace had no power to issue an execution after the lapse of two years from the rendition of the judgment. R. S., c. 120, sec. 175. If he did so, it was void for want of, authority. The justice’s judgment in this case was rendered February 11th, 1859. The execution was issued October 25th, 1861. Under the Revised Statutes, therefore, it would have been void ; and the question is, whether it was aided and the defect cured by the two special acts above referred to. I think that it was, and that it is now to be deemed in all respects as a valid execution. The first section of the'act of April 1,1861, is broad enough to include justices’ judgments. “The party in whose favor judgment has been heretofore or shall hereafter be given, may, at any time within five years after the entry of judgment, proceed to enforce the same as provided in this act.” But the second section seems applicable only to judgments in the courts of record. The third section repeals, sections one and two of chapter 184, R. S. The act is entitled “ An act to amend chapter 134 of the Eevised Statutes, entitled, of executions and proceedings supplementary theretoChapter 134 of tbe Eevised Statutes obviously applies to executions and proceedings in courts of record, and not to courts of justices of tbe peace. It is very doubtful, therefore, whether this act as originally passed has any influence upon the question. But section one of the act of April 13, 1863, is in these words : “ It was the true intent and meaning of chapter 140 of the general laws of 1861, relating to judgments and executions, that the party in whose favor judgment had theretofore been given, or should thereafter be rendered (see Note, p. 504, Laws of 1863) in any court in this state, whether a court of record or a court held by any justice of the peace, might proceed to enforce the same, by execution, at any time within five years from the entry of judgment, in the manner prescribed by law.” The second section amends section 175 of chapter 120 of the Eevised Statutes so as to make executions upon justices’ judgments issuable at any time within five years after the judgments are rendered. Conceding then that the act of April 1, 1861, was before inapplicable to such judgments, it becomes a question of the retroactive power of the legislature. Was it competent-for the legislature, so far as the time of issuing was concerned, to enact that all executions upon judgments of justices of the peace theretofore issued after the expiration of two but before the lapse of five years from the time the judgments were rendered, should be deemed valid and regular ? It seems to me that it was, and that the act operated at once upon all such executions the invalidity of which had not already been adjudged by some competent court of law or equity. I had occasion to examine the question, and some of the leading authorities upon it, in Hasbrouck v. Milwaukee, 13 Wis., 50, and deem it unnecessary to add to what is there said. It appears to me, in the language of Chancellor KENT, to be one of those remedial statutes, not impairing contracts, or disturbing absolute vested rights, but going only to confirm rights already existing and in further-anee of the remedy, by curing defects and adding to the means of enforcing existing obligations, the constitutionality of which has always been upheld. The validity of the judgment is not questioned, and the-obligation of the debtor to pay not denied. After the execution was issued and the judgment satisfied, the question was, whether such satisfaction should stand and the creditor retain that which in justice and equity belonged to him, or whether he should make restoration to his debtor and be put to a new action to recover the debt. I think an act to relieve creditors in such cases to be not only just and reasonable, but that it is liable to no constitutional objection.

Judgment affirmed.