17 Wis. 308 | Wis. | 1863
By the Court,
The decisions in Hoyt vs. Howe and Seamans v. Carter dispose of this case. The doctrine of the former case is very familiar to the public. We are not inclined, at this time, to review that case or examine the principles upon which it rests. It is quite likely that cases can be found in conflict with that decision. And it is not entirely unsupported by authority, as the following cases arising under exemption laws not dissimilar to our own, clearly show. Allen vs. Cook, 26 Barb., 374; Lawton vs. Bruce, 39 Maine 484; Chamberlain vs. Lyell, 3 Mich. (Gibbs), 448. It may be that a lien which the judgment creditor can not enforce by a sale upon execution, or some process of court, is really of but little
In Seamans vs. Carter we held that chap. 137, Laws of 1858, was prospective in its character, and did not affect the operation of any judgment rendered prior to the passage of the law. It is insisted that this construction of that enactment is incorrect. But after diligently considering the able argument of the counsel for the respondent upon this point, we adhere to our construction of the law. We are satisfied that the legislature did not intend it should operate upon all judgments, those already in existence and those afterwards rendered. 'Our reasons for this construction, having already been given, need not be restated.
It is objected that the Schell judgment has never been docketed according to the law of 1858 (chap. 50), so as to make it and continue it a lien upon real estate. The judgment ' was rendered June 9th, 1856. That it was a lien under the statutes of 1849 can hardly admit of discussion. In 1858, the legislature provided that judgments of the United States district c.ourt and of other courts of record in the state, should not thereafter be a lien or incumbrance upon real estate within any county, until a transcript of the docket of such judgment was filed with the clerk of the circuit court for the county in which such real estate was situated. This enactment was substantially .incorporated in the revision of 1858. Sections 49 and 50, chap. 132. Now, waiving the question whether this legislation was intended to apply to existing judgments, it seems to be- sufficient to say. that the law was changed at the next meeting of the legislature. Chap. 134, Laws of 1859. In 1860 there was still further legislation upon the subject. Chap. 237. There is nothing in the latter statute which indicates an intention to have it apply to judgments rendered prior to its passage. We have no doubt that the Schell judgment was a
The judgment of the circuit court must therefore be reversed, and the cause remanded for further proceedings according to law.
