57 Wis. 495 | Wis. | 1883
The learned counsel for the appellant insists that the order striking off the demurrer as frivolous was
The mere statement of facts is sufficient to convict the appellant of a gross fraud, if he knew that the judgment had in fact been paid, and upon the demurrer to the complaint his knowledge of the previous payment thereof is admitted. It needs no citation of authorities to show that the appellant had no right to retain the respondent’s money, obtained, either directly or indirectly, by such a fraudulent representation on his part. Had the appellant told the truth in regard to the matter, it is quite clear the respondent would not have paid his money to the clerk to satisfy the judgment. Having induced its payment by a false statement made for that purpose, and the money having been paid to the clerk relying upon the truth of such statement, the appellant was not entitled to receive such money from the clerk and hold the same against respondent. Having induced the payment
It is urged that tbe circuit court bad no authority to direct tbe appellant, as a condition of bis right to answer after tbe demurrer was stricken out, that be should stipulate to take tbe deposition of tbe witness McMillen upon tbe notice for that purpose which bad been served upon him.
If it appeared to tbe court that tbe demurrer was interposed for tbe mere purpose of delay, then we think such a condition was a proper one to make in the case, so as to prevent the accomplishment of that purpose. And again, as tbe only apparent objection to tbe notice which bad been given was that it was served before an issue of fact bad been joined in tbe case, tbe notice was in fact properly served, and would have been entirely sufficient to accomplish its purpose without any stipulation on tbe part of tbe appellant.. See'secs. 4102, 4110, 4112, R. S. 1878.
Tbe objection that tbe deposition óf McMillen was not properly certified is clearly unfounded. See Hayes v. Frey, 54 Wis., 503.
. Tbe objection to receiving any evidence under the complaint was properly overruled, for tbe reason given for striking ofi tbe demurrer.
It is alleged as error that the court permitted tbe answers of McMillen to tbe fifth aud sixth interrogatories in bis deposition to be read to tbe jury. It will be seen by an ex-
The witness McMillen was the person in whose favor, jointly with the appellant, the judgment- was rendered, and it also appeared that the appellant and McMillen were partners in business when the judgment was obtained and when the' alleged payment was made. After a careful examination of the answers objected to, we can see nothing in them which is not competent and material for the purposes for which they were offered. It appeared from the evidence that Witt had given a chattel mortgage to secure the payment of the judgment in question, and that he afterwards paid the amount due on the chattel mortgage. One Sprague was called as a witness by the respondent to prove that Witt gave a chattel mortgage to secure the payment of this judgment, and that, upon giving such chattel mortgage, the sheriff, who had an execution upon the judgment, by the direction of McMillen, indorsed the same satisfied. This evidence was objected to by appellant on the ground that it was not the best evidence of the fact; that the mortgage and execution were the best evidence; and that parol evidence of them ought not to have been received. We think the evidence was competent. The question in controversy between the plaintiff and defendant was whether the judgment had been paid. Neither were seeking to recover, in this action, either upon the judgment or mortgage, but in order to show that the judgment had been paid, it was necessary to show that a mortgage had been given for the amount thereof, and that such mortgage had been fully paid. The existence of the mortgage was a collateral matter, and it was not error to allow parol evidence of the fact. See Gordon v. Mulhare, 13 Wis., 22; Hawes v.
The respondent afterwards offered in evidence a copy of the mortgage, with an assignment thereof indorsed thereon signed by the appellant. This copy of mortgage, with the ■assignment thereon, was produced by the town clerk, who testified that the same was filed in his office. The assignment on the back of this copy of mortgage assigns “ a chattel mortgage now on file in the office of the town clerk of said town of Earmington, of which said mortgage the within is a true copy.” This, we think, was sufficient evidence against the appellant of the existence of a mortgage of which the copy produced was a true copy for the purposes of this action.
The appellant denied the execution of the assignment, but whether he executed the assignment or not was a question for the jury, and went to the question of his knowledge of the actual payment of the judgment. The jury have found against him on that issue, and their finding is final in this case. It is very clear that the court properly overruled the motion for a nonsuit. There was certainly evidence in the case which tended strongly to show that the judgment had been paid and satisfied long before the respondent paid the money to the clerk of the court,’ and that the appellant had knowledge of such payment. Upon the evidence it was clearly a question for the determination of the jury and not for the court.
Several exceptions were taken to the instructions given by the learned circuit judge to the jury, and exceptions were also taken to the refusal of the judge to give certain instructions asked. We think the judge submitted all the issues in the case plainly and fairly. He said: “ You are brought to
No part of the charge above quoted was excepted to by the defendant, and it was undoubted^ sufficiently favorable to him; and wre think it presented the whole case to the jury. The first, second, and fourth instructions asked by the defendant and refused by the court were given in the general charge, and so it was not error to refuse to repeat them. The third instruction asked was irrelevant. It was an abstract proposition of law not in the case. The fifth
The sixth instruction refused was in substance like the fifth, and was properly refused for the same reason. The seventh was properly refused. There was no question of voluntary payment in the case. The case appears to have been fairly tried and fairly submitted to the jury upon proper instructions, and the verdict is fully sustained by the evidence in the case.
By the Court.— The judgment of the circuit court is affirmed.