Wilson v. Johnson

| Wis. | Sep 24, 1889

Lyon, J.

1. Although there is considerable conflict in the testimony, a careful perusal of it satisfies us that it sustains the findings of fact; at least there is no such clear preponderance of testimony against any of the findings as will authorize us to disturb them. Such findings fully support the conclusions of law and the judgment.

2. We are of the opinion that the action is an equitable one, notwithstanding a personal judgment was demanded and, in form, rendered against the defendant for the amount of the lien. It is said of such cases in 2 Story’s Eq. Jur. § 1033, that “the course now adopted is to bring a bill in equity to foreclose and sell the pledge, in which case an absolute title passes to the vendee.” True, it was held in Harsh v. Fraser, 27 Wis. 596" court="Wis." date_filed="1871-01-15" href="https://app.midpage.ai/document/marsh-v-fraser-6600651?utm_source=webapp" opinion_id="6600651">27 Wis. 596, that an action brought under ch. 153, R. S. 1858, was an action at law on contract. That was a statutory action, and the judgment went upon the grounds that the statute giving such actions denominated them personal actions, and provided for enforcing judgments therein by execution. Neither of these controlling elements are in the present case. This is not a statutory action. The statute merely provides that, if the value of the pledge exceed $100, the lien thereon “ may be enforced against the same by action in any court having jurisdiction.” R. S. sec. 3347. It does not characterize the action either as one at law or in equity, and the judgment is not enforced by execution. At least, no execution should be issued until after the sale of the pledge, and then only on order of the court for the deficiency after applying the proceeds of the sale towards the payment of the amount of the lien. The judgment does not award an execution, but requires the officer making the sale of the pledge to report such sale to the court. The record shows that such report has been made. On confirmation thereof the court may order execution for the deficiency. We perceive no difference in principle between this action and one to foreclose a mortgage on real estate. In actions of the latter class the amount due on the mortgage debt is often sharply litigated. Yet that fact does not make them legal actions, nor entitle a mortgagor to a jury trial on any of the issues.

We conclude the circuit court did not err in denying the motion of the defendant that the issues herein be tried by a jury.

3. The issue made upon the defendant’s counterclaim for loss of the use of his mare is one at law, but it ceased to be of any importance — was practically eliminated from the case — when it was established that the plaintiff held the mare as a valid pledge.

4. The court found that the contract pledging the mare was entered into by the parties on January 16, 1886. It is said this was on Saturday. The newly discovered evidence upon which the motion for a new trial was founded is in the nature of an alibi. It tends to 'show that the defendant was elsewhere on that day and could not have been in communication with the plaintiff. The defendant avers in his affidavit that he will be able to prove, on another trial, that the alleged contract was made, if at all, on Sunday, January 17, and is therefore void. But there is nothing in any of the affidavits tending to show that the contract was entered into on Sunday.' Moreover, the defendant is chargeable with knowledge of the time the contract was made, and, if made on Sunday, he should have so testified bn the trial. lie failed to do so, but contented himself with a denial that any such contract was ever made. In .brief, the affidavits fail to show any diligence on the part of the defendant to discover evidence that the contract was made on Sunday, or that he has discovered any such evidence.

Thé foregoing observations cover all the errors assigned, and overrule all the material exceptions of the defendant.

By the Court. — The judgment and order appealed from are affirmed.