Straw v. Kromer

114 Wis. 91 | Wis. | 1902

Dodge, J.

The undertaking upon which this action is predicated differs radically from that required by the statute (sec. 3034, Stats. 1898), the condition of which is required to be that the defendant “will from time to time attend before the judge, as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution.” It is therefore to be deemed a common-law bond, and to be construed as any other instrument, — reasonably, but not so as to extend it beyond the fair import of its words, as against the surety. So construed, we are persuaded that no breach of the undertaking has been shown. It required only the attendance of Pierce on July 9th, when, confessedly, he did appear. It required, also-, that he abide any order or judgment made in the proceeding, but it does not appear that any order or judgment has been made. By reason of the adjournment and intervening disappearance of Pierce, we presume, the rendition of any such became futile. This construction is apparently the same as that given by the court below, who, however, deemed it possible that liability might be continued if Kromer consented to the holding of the case open on the 9th until the 10th, and on the 10th until the 11th. He accordingly submitted this question to the jury, by an instruction of which some complaint is made by the appellant. Upon careful examination of the evidence, we •are wholly unahle to discover any which tends toward proving a consent on the part of Kromer to any adjournment, even on the 9th, but especially on the 10th, day of July; so that, whatever instruction may have been given, there were no facts which could, even upon the theory adopted by the court, render the defendant liable; and plaintiff cannot have been prejudiced by any errors in submitting that question to the jnry. Defendant was entitled to judgment on the undisputed evidence.

By the Gowrt. — Judgment affirmed.