Snyder v. Malone

124 Wis. 114 | Wis. | 1905

Siebeckee, J.

Error is alleged upon the ground that the municipal court lost jurisdiction of the case by adjournment without sufficient cause being shown, and that defendant Malone's consent was not obtained to such an adjournment, as required by secs. 3630, 3631, Stats. 1898 ; and also because a second adjournment was ordered without waiting an hour from the time to which the cause had been adjourned before ordering another adjournment, the parties not having appeared when the adjournment was ordered, as required by sec. 3633, Stats. 1898. These provisions regulate the practice and procedure in trials of cases in courts of justices of the peace. The question is, Do they apply to the municipal court for Rock county ? This court exists as re-established by ch. 197, Laws of 1881, which provides that: “The same shall be a court of record, have a clerk, and a seal. . . . [It] may exercise powers and jurisdiction equal to and concurrent, with the circuit court for Rock county in all cases of crimes and misdemeanors . . . except murder.” It also has jurisdiction to try appeals in civil and criminal eases from justices’ courts. It is also enacted that the general provisions of the law and the rules of practice applicable to circuit courts and actions and proceedings therein shall, so far as appropriate, apply to the municipal court, “and its rules of practice and proceedings shall conform as nearly as practicable to the rules and practice of circuit courts.” It is true some provisions of the act invest the court with the powers and jurisdiction of a justice of the peace, and provide that the general provisions of law relating to such actions shall be applied so far as appropriate. We think these provisions do not take from the court the character of a court of record, but are to be construed as vesting the jurisdiction and powers of a justice of the peace in this court as a court of record, so that it possesses and exercises the powers of a court of record in all actions and proceedings within its jurisdiction. The claim that the court lost jurisdiction of this cause perforce of the statute relied upon by appellant must be denied, for these provisions do not apply to actions and proceedings of a court of record. Tourville v. S. D. Seavey Co., ante, p. 56, 102 N, W. 352; State ex rel. Le Clair v. Wright, 80 Wis. 648, 50 N. W. 894; Falkner v. Guild, 10 Wis. 563; In re Marchant’s Estate, 121 Wis. 526, 99 N. W. 320.

Was anything conveyed under the assignment from plaintiff to Ryan, since such assignment was made at the request of Lorenze under his purchase of the judgment from the plaintiff a year before ? It is shown that this assignment was so made upon agreement between plaintiff, Lorenze, and Ryan for the purpose of transferring whatever interest Lor-enze had acquired to the judgment under the written assignment to him, which was lost. Under these circumstances the transfer from plaintiff to Ryan operates to convey the interest of Lorenze to Ryan, and binds them as effectually as if such transfer had been made directly from Lorenze to Ryan. Ryan therefore stands in the position of, and has only the rights of, Lorenze in this judgment. The record shows that this note was originally given by Malone to Lorenze under an oral agreement made at the time of its execution to the effect that the note should not be deemed delivered and become operative until Lorenze should procure and submit to Malone a life insurance policy for his acceptance, and, if the policy was not accepted, this noté was to be returned to him. It appears that no such policy was ever submitted to and accepted by Malone, and the note was never delivered, and is wholly without consideration as between Lorenze and Malone. Under such circumstances the transfer of the note by Lorenze to an innocent purchaser can in no way deprive Malone of his equities against Lorenze. As between them there was simply a manual tradition of the paper. No completed delivery of the instrument was ever effected by compliance with the parol agreement. The note therefore never had a legal existence or furnished the basis for a legal obligation between them. Hillsdale College v. Thomas, 40 Wis. 661; Nutting v. Minnesota F. Ins. Co. 98 Wis. 26, 73 N. W. 432 ;. Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174; Mendenhall v. Ulrich (Minn.) 101 N. W. 1057; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816; Green v. Russell, 132 Mass. 536. Entry of judgment on the note in no way clianges the legal relationship of the original parties to the transaction. The equities which attach to the note between these defendants follow the claim when put into judgment. The equitable rights between the original parties are therefore properly before the court upon the undisputed facts in this proceeding, for Ryan, as assignee of ,Lorenze, has no rights other than Lorenze had at the time of the transfer. The legal effect of Lorenze’s conduct in wrongfully transferring the note and of permitting it to go to judgment against himself and Mdr lone renders him in law the principal judgment debtor, and primarily liable as between him and Malone; and his payment of it to plaintiff, as judgment debtor, operated to satisfy and extinguish it, notwithstanding he took a formal assignment. German Am. S. Bank v. Fritz, 68 Wis. 390, 32 N. W. 123; Montgomery v. Vickery, 110 Ind. 211, 11 N. E. 38; Knopf v. Morel, 111 Ind. 570, 13 N. E. 51; National S. Bank v. Hunnewell, 124 Mass. 260; Booth v. Farmers & M. Nat. Bank, 74 N. Y. 228; Tompkins v. Fifth Nat. Bank, 53 Ill. 57. The judgment having been fully satisfied and extinguished, nothing existed to pass under the transfer by Lorenze to Ryan. The petitioner should have been awarded relief by recalling the execution issued on the judgment, and vacating all levies made under it, and by satisfying the judgment of record.

By the Court. — The order of the circuit court is reversed, and the cause is remanded with directions to award petitioner relief in accordance with this opinion.