Smith v. Coolbaugh

19 Wis. 106 | Wis. | 1865

By the Court,

Colb, J.

The application for a stay of proceedings was properly denied. The practice would seem to be a little anomalous for a plaintiff to ask a stay of proceedings in a suit commenced by him, until some subsequent one was determined which had been instituted to perfect his cause of action in the first. But, waiving this point, we think the stay was properly denied for this further reason. The affidavit upon which the motion. was founded states, it is true, that the appellant is the owner of the property in controversy, by virtue of a chattel mortgage executed subsequent to the one under which the respondent claims; but it fails to show what we deem a very material and essential fact, namely, that the debt is due to secure which his. mortgage was given, or that he was entitled by the conditions of the mortgage to take possession of the property before the debt became due.. Whether, under the circumstances, a stay' should have been allowed had the affidavit shown that the appellant was entitled to the possession of the property, is a point we need not decide. Assuming that he would, we think, in order to entitle him to this stay, he ought at least to show that he had a right to the immediate possession of the property on discharging the first mortgage. This is a contest between the first and second mortgagees of the same personal property. The respondent states in the notice annexed to his answer, not only that he holds the property as first mortgagee, but likewise that he has bought the interest of the mortgagor. Now, although the appellant may have a lien upon the property for the payment of his debt, yet it does not follow that he is entitled to the possession of the property, unless his debt is due; or that he has the right, by virtue of his mortgage, to take the property into his possesssion as against the mortgagor or the owner of the equity of redemption. Hence he was not entitled to the relief asked in his motion.

The judgment, however, is erroneous, because it is not in the alternative, for a return of the property, or the value thereof in case a return could not be bad, as required by the statute. Sec. 31, chap. 132, R. S. The respondent insists that he had the right to waive a return and take judgment for the value, and cites in support of this position the cases of Pratt v. Donovan, 10 Wis., 378, and Morrison v. Austin, 14 id., 601. In Pratt v. Donovan the defendant did not claim a return of the property in his answer, as he has in effect done in this case, and therefore the court held that he might waive the return and take judgment for the value only. See Farmers' Loan and Trust Co. v. Commercial Bank of Racine, 15 Wis., 424. In Morrison v. Austin the defendant only took judgment for a return of the property, when he was entitled to a further judgment for the value. The court held that the plaintiff was not prejudiced by such a judgment, and had no ground of complaint because his opponent had taken less than the law allowed him.

It will be seen, therefore, that this case is distinguishable from those cited. It is impossible to say that the judgment in this case operated to the benefit of the appellant. Indeed, it might be greatly to his injury to pay for the property instead of returning it. And as the statute requires the judgment to be in the alternative when the defendant claims a return, the plaintiff has an undoubted right to insist that the judgment shall be in that form.

The judgment of the county court is reversed, and a new trial awarded.