Volume 27 — Wisconsin Reports

The defendant demurred to the complaint for lack of jurisdiction in the court, for a defect of parties plaintiff, and for insufficiency of facts; and appealed from an order overruling the demurrer.

Action to recover damages for an assault and battery. The answer was, in substance, first, a general denial; and secondly, an averment tbat all the acts of the defendant Duncan McMullen were done in self-defense against an assault made upon him by the plaintiff. At the plaintiff’s request the following instructions were given : 1. That if defendants assaulted the plaintiff, intending to injure him, they were responsible for any natural consequences of that act. 3.

In September, 1868, plaintiff shipped certain flour by the defendant company’s road, at a station in said county, and received a receipt or bill of lading therefor, in which the property was described as “100 barrels flour, marked to Harvey Scudder & Co., Boston, to be forwarded to Chicago station, upon the terms and conditions of the published tariff” of said company.

Action for damages resulting to plaintiff’s land from the construction of the defendant’s road across the rear end thereof, abutting upon Lake Monona, in the city of Madison. It appeared that defendant had cut away the bank of the lake on said lot several feet, and that a retaining wall would be necessary to preserve the hank as thus altered.

The plaintiff appealed to- said court from the award of commissioners appointed to estimate his damages for the construction of the “ Sun Prairie Division ” of defendant’s road along the water side of certain lots abutting on Lake Monona, in the city of Madison. The amount so awarded was $500. It appeared that plaintiff purchased the lots from one Parkinson, in 1867, for $4,500, paying $500 in cash, and mortgaging the property back to secure the remainder.

The defendant appealed from a judgment in favor of the plaintiff. The question presented by the record will sufficiently appear from the opinion.

The complaint (filed at the June term of said court, 1870) alleges in substance, that on the 27th of February, 1869, the plaintiff duly recovered a judgment before a certain justice of the peace of said county, against the defendants (Simpson and one Clark), upon a claim on which said defendants were jointly liable to him, for $103.63, but that process in the action “was not personally served upon all of said defendants;” that afterwards the judgment was duly docketed in…

Ejectment, for 120 acres of land. The answer set up certain facts to show that plaintiff had obtained a patent of the- land from the School Land Commissioners, hut that defendant had previously made a valid purchase of the land from said commissioners, which they had subsequently attempted, without authority, to cancel; and it demanded judgment that the plaintiff release and convey to defendant all claim to said land, etc. Reply in denial, and alleging an agreement by…

Ejectment, for a half-quarter section of land. The plaintiff owned the land in 1854; and in that year a deed thereof, purporting to be executed by her and by John L. Ladd, who was then her husband, was delivered to one Manchester; and by several intermediate conveyances the possession .and Manchester’s title became vested in the defendant. The deed to Manchester was not executed in fact by Mrs. Ladd, but her name was signed thereto by a Mrs. West.

An act of the legislature, approved March 22, 1853, and published as ch. 105,P.&L.Laws of 1853, authorized the common council of the city of Kenosha (after an affirmative vote of the electors of said city should first be had, in the manner there prescribed) to issue bonds of the city, to an amount not exceeding $150,000, to the Kenosha and Beloit Railroad Company; and also authorized the levy of a tax, from time to time, to pay the interest on such bonds as it became due.

The complaint alleges that “ plaintiffs are partners in business, etc., and are shippers and forwarders to ports and places upon Lake Superior, and purchasers upon commission of supplies and provisions to he used and vended in the mining regions of Lake Superior,” and that the defendants (partners in business at Milwaukee, as packers of meat and provisions), at the request of plaintiffs, about November 7th, 1868, at Milwaukee, undertook to furnish plaintiffs cured and…

Action for injuries to the person of Mrs. Curtis, from her being thrown from the platform of a car on one of defendant’s trains, in consequence of the sudden starting of the train while she was getting upon it.

Ejectment, commenced in December, 1867. The opinion will show clearly the grounds upon which the respective parties rested their claims of title. The defendant appealed from a judgment in favor of the plaintiff. [No brief on file.]

On the 3d of May, 1860, one Eldred leased certain premises in the city of Milwaukee to the plaintiff, for five years, by deed of indenture which contained the covenants stated in the opinion infra, as to the lessor’s option, at the end of the term, either to renew the lease for five years or purchase the improvements; and so for each subsequent term of five years.

The defendant gave his own note to M. Von Baum-bach & Co., November 27, 1868, for the principal sum due by the terms of two notes previously made by E. Salomon & Bro. to the same payees, and upon which (they not having been paid at maturity) defendant had been charged as indorser. The plaintiff purchased defendant’s said note before maturity, in good faith, without knowledge of any facts invalidating it; and after it became due brought this action upon it.

In an attachment suit in justice’s court, brought by Putney against one Corlett, judgment was rendered against the latter for $8.30 damages, and $7.00 costs. Farnham was garnisheed in said suit, and after he had made answer to the interrogatories put to him before the justice, plaintiff demanded judgment against him, as garnishee, upon his answers, for the full amount of the judgment against Corlett, and for costs of the garnishee suit.

For a statement of the substance of the original complaint in this action, reference is made to the report of the former appeal therein, 24 Wis. 270 — 275. After the cause was remitted to the circuit, an amended complaint was filed, the chief additional allegations of which will sufficiently appear from the opinion, infra. A demurrer to this complaint for insufficiency of facts, was overruled; and defendant appealed.

The plaintiff, owning part of a lot fronting on East Water street, in the city of Milwaukee, and occupying, with his business as a wholesale merchant, the building erected thereon, brought this action to restrain the defendants from building and operating a second track for its horse railway along said street, over that portion thereof which plaintiff claimed to own in fee (as a part of his said lot), “ subject only to the right of the public to use the same for the purposes…

Replevin, for a certain “ sample trunk and its contents.” The defense was, that one Reynolds came to defendant’s hotel at Oshkosh in this state, in July, 1868, and took rooms and stopped at said public house as a guest, remaining there until he had contracted an indebtedness, as such, of $73; that he had with him as baggage the property in question, and defendant had a lien thereon for the amount of his hill; that Reynolds, with intent to cheat and defraud defendant, and to…

<p>ERROR to the Circuit Court for Winnebago County.</p> <p>cited Davis v. Slagle, 27 Mo. 600; Denslow v. Van Horn, 16 Iowa, 476 ; Kniffen v. McConnell, 30 N. Y. 285.</p>

The action below yras by York against Hoile. On the 12th of November, 1868, the parties entered into a written contract, by the terms of which Hoile agreed to receive York “ into joint and equal partnership in the general produce, fruit and commission business ” then carried on by Hoile, “ on and after the first of April, 1869, upon the following conditions,” viz.: that York should forthwith furnish Hoile $275, to be used by the latter in the purchase of meat, poultry, or…

The case made by the complaint is as follows: In May, 1865, a paper was signed by the defendant and by numerous other persons and firms, containing the following agreement: “We, the undersigned, agree to pay the sums set opposite our respective names, for the purpose of purchasing from Messrs.

The defendant appealed from an order of the court. The character of the order, and the grounds upon which it was made, will sufficiently appear from the opinion.

In September, 1868, the present plaintiff commenced an action in said court against Nicholas Johann and wife (with others) to foreclose a mortgage (made in 1856) of -certain lands belonging to said Nicholas.

This action was brought by Mrs. Almira Phillips against her husband, Nelson Phillips, for a dissolution of their marriage, on the ground of cruel and inhuman treatment of the plaintiff by the defendant. The circuit court found that none of the material allegations of the complaint were true, and rendered judgment dismissing the complaint. The plaintiff appealed.

The facts alleged in the complaint are substantially as follows: In the spring and summer of 1867, the plaintiff below (who is also plaintiff in error) was engaged in operating a tannery in the village of New London, in Waupaca county, in this state, on the banks of the Wolf river.

Action for damages for the conversion hy defendant to his own use of certain pine logs, alleged to have been the property of the estate of William E Ford, the plaintiffs’ intestate, and to the possession of which plaintiffs claimed to be entitled as administratrix and administrator. The defendant as sheriff, levied upon and sold the logs as the property of one Imus (the father of the plaintiff Mrs. Ford) under an execution against said Imus.

Some old English decisions hold, in relation to the ancient practice in cases of this kind, which was entirely criminal in its nature, that it was discretionary in the court to order a re-restitution on quashing the proceedings; almost invariably, however, exercising the right. Bacon’s Ah. “Forcible Entry and Detainer,” G.; Fitz-Williams’ Case, Cro. Eliz. 915. Others held the defendant to have an absolute right to re-restitution. Rex v. Jones, 1 Strange, 474.

On the 8th of January, 1851, E. B. Wolcott, T. C. Dousman, and Z. A. and S D. Cotton, as parties of the first part, and J. A. Noonan and Peter McNab, as parties of the second part, executed an “indenture of lease,” which provided as follows: “The said parties of the first part, in consideration of the rents reserved and the covenants hereinafter contained, do hereby demise and lease unto the said parties of the second part, their heirs, executors, administrators or assigns,…

This is an equitable action founded upon the lease described in the foregoing case (p. 272), and the original bill was filed January 19, 1855. Decisions of this court upon former appeals herein will he found in 4 Wis. 335-342, and 21 Wis. 283-294. The report last mentioned contains a full outline of the pleadings and proceedings up to the January term of this court, 1867, which will not be repeated here.

Action to recover for wool which had been shipped by plaintiffs in Wisconsin by the defendant company’s road, consigned to the plaintiffs themselves at Chicago, and which, before its removal by them from the' company’s “in-freight depot” at the last named city, was destroyed or injured in a fire which destroyed said depot.

The plaintiff held the office of treasurer of said county during the years 1861 and 1862. In November, 1861, he had an accounting and settlement with the board of supervisors.

On the 1st of June, 1863, Mrs. Ragan held a mortgage upon certain premises in Richland county, executed by Mrs. Simpson, who held the legal title thereto; and an action had been commenced to… Held: constituted Mrs. Ragan the owner in feethat “ the agreement executed at the same time, was a lease coupled with an agreement to sell ” upon certain conditions which had not been complied with. 2.

On tbe 7tb of February, 1867, in tbe city of Oshkosh, one Kingsley requested Spaulding to go with bim to the stable of one Fulton and assist him in taking therefrom and leading away to his (Kingsley’s) barn two horses upon which he held a chattel mortgage.

The first cause of action alleged in the complaint is for trespass to the plaintiff’s close, with injuries to his fence,-etc., to his damage $500 ; and the second is for an assault and battery, committed at the same time, to his damage $500.

This action was brought in 1864. The decisions of the court upon two former appeals will be found reported in 20 Wis. 335, and 21 Wis. 548. On the third trial, the evidence showed substantially the same facts which are stated at length in the report last cited.

The plaintiff moved for judgment in this court upon a special verdict found in the Dane circuit court.

<p>ERROR to tbe Circuit Court for Milwaukee County.</p>

<p>ERROR to the Circuit Court for Fond du Lac County.</p>

<p>APPLICATION for a Mandamus.</p>

Replevin for certain wearing apparel, umbrellas, valises, etc. The substance of the answer is stated in the opinion. A demurrer to the answer, as not stating a cause of action, was sustained, and the defendant appealed. contended that the statute (sec. 1, ch. 89, Laws of 1863) is plain and unambiguous, and leaves no room for construction (Sedgw. on Stat. and Con.

The decision of this court on a previous appeal in this cause from the judgment of said circuit court, will be found in 26 Wis. pp. 104-142. After the cause was remitted for a new trial, the court made an order, on the application of the proponents of the will, directing that the place of trial of the issues of fact in the cause should be changed to the circuit court for Racine county, on the ground that a fair and impartial trial thereof could not be had in Rock county.

Action to foreclose a mortgage made by the defendant, Elizabeth Mitchell, April 23, 1862, to secure her note of the same date for $1,155, with interest at ten per cent., running to Elizabeth Thomas, one of the plaintiffs, with whom her husband, Robert Thomas, joined in bringing suit.

Action for a divorce, brought by the husband, on the ground of desertion by the wife. Answer, a denial, and a demand for divorce, etc., upon the ground of cruel and inhuman treatment and adultery on the part of plaintiff. The defendant appeals from an order refusing to change the place of trial to Dane county.

Replevin, commenced April 30, 1867, for certain cattle, alleged to have been wrongfully taken from plaintiff’s possession by defendant on the 27th of the same month.

The defendant appeals from an order overruling his demurrer to the complaint.

Action for damages for the flowage of plaintiff’s land, caused by defendant’s dam. Verdict for the plaintiff; new trial denied; and from a judgment on the verdict the defendant appealed.

<p>APPEAL from the County Court of Milwaukee county.</p> <p>Ejectment. The defendant appeals from a judgment for the plaintiff. The case is stated in the opinion.</p>

Ejectment, for part of a lot in the city of Milwaukee. The plaintiff claimed under a patent from the state, executed by the commissioners of school and university lands, in 1870. The defendant held the land as tenant of J. Y. Y. Platto, who claimed title under tax deeds, and also pleaded the statute of limitation, alleging possession under said tax deeds for more than three years after they were recorded.

The plaintiff in error seeks to reverse a judgment of the circuit court dismissing a writ of certiorari issued out of said court at his suit, to a justice of the peace of said county. The case will appear from the opinion.

<p>Jurisdiction: (1.') Jwisdiction of J. P. (2.) When objection may be taken in supreme eowt. (3.) Jurisdiction of appellate cowt, where comi below had none. (4.) Waiver of lack of jwisdiction of the person, i/n criminal actions.</p> <p>1. Where a justice of the peace was authorized to take jurisdiction of an action only in case of the “absence, sickness or other inability” of a municipal judge, the fact that such judge declined to act in the cause, did not give the justice jurisdiction.</p> <p>2. This objection may be taken in the supreme court, although it was not taken before the justice, and the cause was, by stipulation, argued and submitted in the circuit court upon the objections taken before him.</p> <p>3. In criminal as in civil actions, an appeal confers no jurisdiction upon the appellate court, where the lower court had no jurisdiction of the subject-matter.</p> <p>4. Whether, m a criminal action, an appeal waives an objection to the jurisdiction of the lower court over the person, is not here decided.</p>

The defendants appealed from a judgment in favor of the plaintiffs. The plaintiffs move to strike out the hill of exceptions, upon grounds which will sufficiently appear from the opinion.

Trespass quare' clausum. Answer, that the locus was .highway, which plaintiff willfully obstructed, and that defendant, as overseer of highways, removed the obstruction. The .proceedings for laying out said highway, referred to in the opinion, infra, were had in 1860; and the action was commenced in 1870. Yerdict and judgment for the defendant; and the plaintiff appealed.

Ejectment. The plaintiff appealed from a judgment in favor of the defendants.

The defendant appeals from a judgment for the plaintiff. The case is stated in the opinion. contended that by the terms of the company’s charter, plaintiff was entitled only to “ the value of the land entered upon, taken, possessed, occupied and used by said company ” (sec. 11, ch. 243, P. & L. Laws of 1868); that a “just compensation,” within the constitutional provision on that subject, means tbe actual value of the property taken, in money, without any deduction for…

The plaintiff brought an action- against one- Lewis and Martin Rosecrance, upon a judgment rendered against them in his favor, in a court of another state; and he took judgment as for default of answer against both defendants. The order for judgment recites that the summons, with a copy of the complaint, had been personally served on the defendant Rosecrance.

This action was brought by the plaintiff in his own behalf and that of all persons similarly interested, to restrain the defendants from erecting buildings upon block two in Wilson & Dunn’s Addition to the village of New Lisbon, upon the ground that said block had been dedicated as a public square.

The plaintiff appealed from a judgment dismissing the action for want of jurisdiction. The case is stated in the opinion.

■APPEAL from the Circuit Court for Eau Claire Count y. The plaintiff appealed from a judgment in favor of the defendant. The case is stated in the opinion.

<p>APPEAL from the Circuit Court for Pierce, County.</p> <p>The defendant Lyford appealed from a judgment rendered against him in said court. The case is stated in the opinion.</p>

The defendant Sarah M. Babcock appealed from a judgment in foreclosure in favor of the plaintiff,, against her and her co-defendant.

The defendants appeal from a judgment against them. The case is stated in the opinion. to the point that. the receiptors might show that the property was exempt from attachment, cited Drake oh Attach.rq.ent, 381; 2 Allen, 449' ; 2 N. H. 87 ; 36 Me. 322. To the point that the liability of the defendants to the sheriff was no greater than that of the sheriff to the attaching creditor, they cited Drake on Att. § 370; 28 Me. 505; 14 Yt. 491; 19' id. 65; 3 Met. 416; 10 Cush. 319.

The defendants, William Charlton, treasurer of Dane county, and the City of Madison, appealed from an order overruling their demurrer to the complaint. The case is stated in the opinion. contended that the re-assessment and re-levy of the special taxes in question were plainly authorized by the terms of ch. 316, P. & L. Laws of 1869; and to the point that the act was valid,, he cited Tollman v. Janesville, 17.

Action for a divorce, commenced by the husband, July 17,186 9. The complaint averred, and the answer denied, that the parties had voluntarily lived entirely separate for the five years preceding the action. The court found that they had lived entirely separate since the 7th of July, 1864 ; held that plaintiff was entitled to the relief sought; and rendered judgment dissolving the marriage.

The case is stated in the opinion. argued that all orders except such as a party is entitled to as a matter of course, must be brought on upon notice or order to show cause (R. S. ch. 140, sec. 30; C. C. Rules, 22, 23); that on a motion for a new trial on the judge’s minutes, the opposite party, having a right to be heard, is entitled to notice of the time and place of hearing (2 Whit.

The defendant appealed from a judgment in favor of the plaintiff. The questions presented by the record will sufficiently appear from the opinion. In England, when a carrier receives goods destined to a point beyond the end of its line, the implied contract is that the carrier will safely transport the goods to their destination, without regard to the number of changes that may be required to reach that point.

<p>Pleading : (1.) Matters of inducement stated in first count to be merely referred to in subsequent counts'. (2,3.) “Commencement” of complaint ; averments not to be repeated.</p> <p>1. Matters of inducement, and not of the gravamen of the action, haring been stated in the first count of the complaint, need not and should not be repeated, but merely referred to, in the subsequent counts.</p> <p>2. Pacts showing the character or right in respect of which parties to the action have been made such, form properly the commencement of the complaint, distinct from the several counts, and equally applicable to them all.</p> <p>3. Where, therefore, a complaint in slander for words spoken by the female defendant of the female plaintiff, commenced by stating that at the time the defamatory words thereinafter mentioned were spoken, defendants were husband and wife, and that plaintiffs were husband and wife when the action was commenced, the second count (which was for words different from those charged in the first) was not bad for not repeating these averments.</p>

Ejectment, by Sarah B. Newton, claiming as widow of John M. Newton, deceased. The land is alleged to have been the homestead of said John M. Newton and his family prior to his decease. The defendant claimed as purchaser at a sale under an execution in ,a certain attachment suit in said court, brought by one Field against one William H. Newton.

The plaintiff appeals from an order sustaining a demurrer to the complaint. The case is stated in the opinion. By ch. 243, Laws of 1862, the court is authorized to render judgment for a deficiency, and to render judgment against a third party liable for the debt.

This was an action (commenced in 1865) to recover of defendants certain water rents alleged to be due by the terms of a certain lease under seal. The damages were laid at $40,000. The complaint was not verified. The defendants claimed that the lease expired, by its terms, on the - 8th of January, 1855, and demurred upon that ground to so much of the complaint as sought to recover rent- on the lease for the time subsequent to that date.

While the preceding appeal in this action was pending in this court, to wit, at various times during the year 1869, the plaintiff proceeded to garnish a considerable number of corporations and natural persons alleged to be indebted to the defendants, or one of them. The affidavit for garnishment in each of these cases seems to have been similar to that described in the foregoing report of the former appeal (ante, p. 572).

argued that a suit to enforce a mechanic’s lien is either a pure chancery proceeding, and governed by the rules of. chancery practice, or partly in the nature of a suit in equity, and partly in the nature of a personal action (Clarke v. Boyle, 51 Ill. 104; Shaw v. Allen, 24 Wis. 563, 565), and in either case is not included within the provisions of ch. 402, Laws of 1864.

Action for libel. The complaint, after certain prefatory matter, avers that on the 13th of March, 1866, during the session of the legislature of this state for that year, at the city and county of Milwaukee, defendant did maliciously publish and cause to be published in the German language, in a newspaper printed and published in said city of Milwaukee, called the “ Banner and Volksfreund,” of and concerning the plaintiff, and of and concerning his official action as a…

The original complaint was upon six different causes of action, arising upon as many promissory notes. The defendants answered as to the first three causes of action, and demurred as to the residue.

On the 12th of July, 1867, the parties to this action, who had been for some two years co-partners in the business of buying and selling neat cattle, etc., submitted “ all matters in controversy and accounts between them as co-partners, and otherwise,” to the decision of an arbitrator. This action was after-wards brought to obtain relief from the award of such arbitrator, on the ground of error and fraud.

Action by the wife for a divorce from the bonds of matrimony, commenced in May, 1870. The material allegations of the complaint appear in the opinion. Before the complaint was filed or served, the plaintiff filed an affidavit, stating substantially the same facts which are alleged in the complaint, and also stating that the action had been commenced by service of the summons.

Action upon a promissory note, commenced before a justice of the peace.

Action to set aside a tax deed as a cloud upon the title to real estate. On the 15th day of March, 1869, Hollister, one of the defendants, being the owner in fee of certain real estate, executed a mortgage thereon, which was afterwards assigned to the plaintiff.

McLaughlin and one Horatio Curts executed their bond and a mortgage of certain real estate of which they were tenants in common. The mortgage was foreclosed, and the land sold to satisfy it.

This was an action upon an undertaking executed by the defendant, in 1860, as surety in a replevin suit, wherein one Waterman was plaintiff, and Tarbox, the plaintiff in this action, was defendant.

Croix County. This was an action to recover damages claimed to have accrued from the grading and raising of a street in the city of Hudson, whereby the surface waters, running through a ravine across the premises of the plaintiff adjacent to the street, were obstructed in their flow and and set back upon the said premises.

Action to recover for work and labor performed; commenced in the circuit court for Dunn county. Defendants moved for a change of venue to the county of Eau Claire’ supporting the motion by affidavits that Eau Claire was the place where they both resided at the time of the commencement of the action, and the place where they were both served with the summons.

The county court of Pierce county, on the application of John Shotton, in 1868, issued an order re-opening the administration of the estate of Thomas Shotton, deceased, and setting aside as null and void all proceedings therein relative to the appointment of S. R. Gunn as administrator of said estate in 1857, and the sale of certain lands by him as such administrator in 1861, and vacating the said sale.

Croix County. Action to compel a specific performance of a contract to sell and convey land. Held: That plaintiff was entitled to the usual judgment that defendant perform specifically the agreement on his part. 2.

Replevin, for goods taken by defendant from plaintiff's store. Answer that the goods were taken by defendant as city treasurer of the city of Prescott, by virtue of a warrant duly issued to him for the collection of a tax against the plaintiff, which tax the plaintiff had refused to pay on demand.

The complaint in the court below averred title in the plaintiffs, and wrongful possession in the defendant, but did not aver that the plaintiffs were entitled to the possession of the premises, as required by section 4, chapter 141 of the Revised Statutes. The defendant demurred to the complaint as not containing this averment.

Foreclosure of a mortgage made to secure a.bond.running to plaintiffs’ testator. The mortgage was executed and delivered December 1,1855, the mortgagor and the mortgagee both residing in the state of New York. The record shows that in January, 1857, the mortgagor paid one year’s interest at ten per cent.; that no subsequent payments were made; that the mortgagee died in 1857; and that no efforts were made to enforce the mortgage till April, 1870.

Action to recover money deposited by the plaintiff in the hands of the defendant as stakeholder at a horse race.

On the 7th of November, 1866, the defendant company, by one Bulkley, its local agent at Elkhorn, in this state, issued a policy of insurance for one year from that date upon certain property in said village of Elkhorn.