Shinners v. Brill

38 Wis. 648 | Wis. | 1875

Ryan, C. J.

It appears by the chattel mortgage, under which the respondent claims, that the mortgagor was entitled to possession of the goods mortgaged until default, and had not made default when this suit was brought. The respondent’s title to the goods was therefore then conditional, without right of possession. Saxton v. Williams, 15 Wis., 292; Smith v. Coolbaugh, 21 id., 427; Fraker v. Reeve, 36 id., 85. Accordingly, when the mortgaged goods were seized by the sheriff as the goods of the mortgagor, the respondent did not bring a possessory action; but proceeded, we need not inquire whether ill or well, by equitable suit to enjoin the sale or removal of the goods.

Pending the suit so instituted, default was made in the condition of the mortgage, and the respondent’s possessory right became apparently complete. Thereupon, abandoning his equitable remedy, he applied to the court below for leave to amend his complaint by substituing one in an action of trover. The court below allowed the amendment, and very clearly erred in doing so.

The question whether, under the code, an equitable proceeding may be changed by amendment into an action ex delicto, need not be considered here. For the right of the respondent to maintain trover did not accrue until the condition of the mortgage was broken. And it would be outside of the doctrine of amendment, and a violation of all principle and precedent, to permit a plaintiff to amend his complaint by setting up a new and distinct cause of action accruing puis darrein continuance.

By the Court — The order of the court below is reversed, and the cause remanded for further proceedings.