Volume 31 — Wisconsin Reports

The complaint alleges that the parties, haying had mutual dealings in the purchase and sale of gas tar, etc., had a mutual accounting in respect to such dealings on the 22d of July, 1869, upon which, the account between them was stated, and a balance of $2,626 was found to be due to the plaintiff from the defendant on final adjustment thereof; that on the 15th of August, 1869, the defendant paid the plaintiff $1,000, on account of such balance; and that, in stating said…

The plaintiff owned “lot 1, in the partition of lot 1,” in a certain section of land included within the limits of the city of Milwaukee. The southern boundary of the lot is the middle line, or the thread, of the south branch of the Menomonee river.

Foreclosure of a mortgage. Tbe premises conveyed by tbe mortgage were a lot in the city of Milwaukee, with dwelling thereon. On the 7th of May, 1866, the plaintiff and Ms wife conveyed said premises to tbe defendant B. Gr.

The plaintiff sold and transferred to the defendant a note and mortgage for $1,000 and ten per cent, interest, executed by his son, Theodore P. Armstrong, to the plaintiff. The defendant paid therefor $950, and the plaintiff, as a part of the same transaction, by an indorsement to that effect on the note, guarantied the payment of the whole amount for which the note and mortgage was given, principal and interest.

Action to recover a balance of an account for services rendered and moneys expended by plaintiff in keeping certain horses, alleged to have been owned by defendant, at plaintiff’s stables in the city of New York. The complaint sets oat the items of the account, both debit and credit.

Ejectment. Complaint in the usual form. Answer, a general denial as to title, but admission as to possession.

Action upon an insurance policy, to recover tie amount of loss as adjusted and agreed upon- between the company and the assured.

Action to recover from tlie defendant tlie amount of a judgment against a joint stock association, of which he was a member.

Action to set aside, as being fraudulent as against the creditors of Samuel Price, a certain conveyance of lands made by said Price and his wife, Jane P. Price, to one J. House, on the 2d of December, 1867, and a reconveyance thereof by said House to said Jane P. Price on the 6th of December, 1867 ; also, a patent issued by the state to said Jane P. Price, on the 2d of May, 1868, on a certificate of purchase previously held by her husband.

This appeal was taken by the plaintiff from an order of the court quashing certain proceedings in garnishment commenced against various persons alleged to be indebted to the defendant, etc. The following statement was prepared by Mr. Justice Cole as a part of his opinion in the case : “In this case an unverified complaint had been served and filed in June, 1865, and the garnishee proceedings were instituted in January, 1870.

APPE.A L from the Circuit Court for Milwaukee County. Action upon a promissory note, against one of the makers alone.

Action against a sheriff and bis deputy to recover tbe value of plaintiff’s borse, buggy and harness, alleged to have been unlawfully taken by defendants from tbe possession of one Winton, and unlawfully detained by them. Plaintiff claims that tbe property was exempt from execution, of which claim be had duly notified defendants before it was sold by them.

Action to recover tbe sum of $500 with interest, alleged to have been collected by defendant on a note against one Thomas, belonging to tbe plaintiff and by him left with the defendant for collection. Answer, a general denial.

Action to foreclose a mortgage executed by Barron, the grantor of the defendant Jess. Held: he paying the balance in money and notes; and that, when he took or purchased said mortgages, and when he made such payment and took such deed, neither he nor his assignor, nor their agents, solicitors or attorneys, had any knowledge, actual or constructive, express or implied, of any right or claim to any part of the premises under…

After a judgment in favor of tbe plaintiffs bad been reversed on appeal, and a new trial ordered, tbe defendants procured an order dismissing tbe action for want of prosecution. Prom an order vacating that order tbe defendant appeals. Tbe case sufficiently appears in tbe opinion. Tbe notice of motion served here was not sucb a proceeding as would keep the cause in court under cb. 185, Laws of 1864.

This action was commenced in Brown county, by the town and village of Depere against the defendant towns, to enforce contribution on account of moneys paid by the plaintiffs upon indebtedness incurred by the original town of Depere when the defendants constituted a part'thereof. The judge of that circuit having been of counsel, the case was transferred to Eond du Lac county.

This action was commenced in the circuit court for Winnebago county, but transferred to Fond du Lac county, on petition of the plaintiff on the ground that the judge was prejudiced. Upon the trial in that county a judgment was rendered for the the plaintiff, which was reversed on appeal. The case was never continued on defendant’s application.

Action upon a promissory note executed by the defendants to the plaintiff. Complaint in the usual form. The answer admits the making and delivery of the note as alleged in the complaint, and “for further defense” states certain facts, which, if true, show that the note was fraudulently obtained and without consideration.

Ejectment, for “ a strip of land three rods and one foot wide and forty rods long, upon the north side of the east half of the southwest quarter of the northwest quarter of section five in a certain town in said county. ” Plaintiff showed: 1. A patent from the United States, in 1848, to one Barden, of the west half of the northwest quarter of said section, which is also described in the patent as “ eighty-one and 54-100 acres of land.” 2.

This action was brought under cb. 22, Laws of 1859, by tbe grantee in a certain tax deed, against tbe former owner of tbe land described in sucb deed, for tbe purpose of barring tbe defendant of all right, title, interest or claim in and to sucb land, or a portion thereof. A copy of tbe tax deed is inserted in tbe complaint, but does not have attached to it or upon it a copy of tbe seal of tbe board of supervisors, by whose cleric tbe deed purports to have been executed.

Action by an executrix to recover tbe balance due upon a promissory note given to her testator, after deducting certain payments indorsed thereon. The answer admits tbe making of tbe note, and tbe payments indorsed as stated in tbe complaint, but denies all the other allegations therein contained, and, fora further axlswer, alleges that “tbe defendant made a full payment of said promissory note ” to the payee in his lifetime.

This action was commenced in said court; and after some proceedings were had therein, the defendant applied, on a verified petition, fox a change of the place of trial, on account of the prejudice of the judge, and asked that the same he sent to some county where the cause complained of did not exist. Thereupon the court made an order changing the place of trial to the circuit court for Creen Lake county. From this order the defendant appealed. cited State ex rel.

Action upon a fire insurance policy. Tbe complaint contains tbe usual allegations as to tbe making and terms of tbe policy, tbe plaintiff’s title in fee to tbe premises, tbe loss, and tbe notice and proofs thereof furnished to tbe defendant company, • and its failure to perform the contract on its part.

Tbis appeal was taken by tbe defendant from an order overruling his demurrer to tbe complaint as not stating a cause of action.

The action was in the nature of trover, for the alleged unlawful conversion by the defendant of a quantity of wheat belonging to the plaintiff, who was a married woman but claimed the wheat in controversy as a part of her separate estate.

Action for damages arising from a defect in a bigliway. Tbe plaintiff was traveling along a highway in the town of Fond du Lac, in February, 1870, with a span of horses and a double sleigh loaded with wood. When he reached a point a short distance west of a bridge, on such highway, where the grade was narrowed, he turned his team to the south and right of the graded portion, into alow place by the side of the high ,v ay.

Tbe following statement of tbe case was prepared by Mr. Justice Cole as á part of bis opinion: “ Tbis is an action to recover tbe value of a bill of goods and merchandise delivered by tbe plaintiff to one Sandford. Tbe plaintiff, wbo is a merchant, claims and attempts to show that be sold and delivered these goods solely on the faith and credit of the defendant, wbo promised to pay for them, and that be refused to trust Sandford, not considering him pecuniarily responsible.

<p>APPEAL from the Circuit Court for La Fayette County.</p>

Action for the partition of real estate situate iu said county, commenced March 2, 1870. The complaint is in the usual form, the plaintiff alleging that he is seized in fee simple oi the equal undivided one half of the premises sought to he partitioned, and the defendant McClintock of the other undivided half, subject to an equitable right of Hill, the other defendant. The defendants answered separately, the defendant Hill disclaiming any interest whatever in the premises.

<p> Excerption to charge must be specific. </p> <p>Where the charge of the court contains a number of propositions of law, and a summary of the leading facts disclosed by the evidence, a general exception “to said charge, and particularly to that part of it Which is adverse ” to the appellant, presents no question for review on appeal.</p>

This action was brought to recover damages for the alleged interference by the defendants in the enjoyment of a certain ferry franchise across the Wisconsin river, and for an injunction to restrain any future interference therewith. By sec. 1, .chap. 418, P. & L. Laws of. 1865, the legislature granted to the plaintiff JE.

Action against a county treasurer and. bis sureties on bis official bond.

This action was commenced before a justice of tbe peace in January, 1871.

Action by tbe claimant under ten tax deeds, to foreclose tbe right, title and interest of tbe former owner to tbe lands described, therein, pursuant to the provisions of Laws of 1859, chapter 22. The complaint seems to be in the usual form of complaints in actions of like character.

Action by a wife for a divorce, on the ground of cruel and inhuman treatment. The defendant recriminates, charging the plaintiff with having committed the crime of adultery, at a house known as the Hosmer House, between the 1st of April and the 30th of June, 1863, with one Hill.

The complaint states but a single cause of action, which is upon an account stated. The answer, among other defenses, avers that any claim which the plaintiff may have against the defendant arose from the sale and delivery to him by the plaintiff, of spirituous and intoxicating liquors, all of which were so sold and delivered on Sunday; and further, that when the plaintiff sold and delivered the same, he had no license so to do, as required by law.

The following statement of the case was originally prepared as a part of the opinion, by DixoN, C. J. “ One-half of the net proceeds of the sales or of the income derived by the state from the swamp and overflowed lands donated to it by congress for tbe purpose of reclaiming such lands, bas been set apart by the legislature for that object, and a fund created denominated by statute “ the drainage fund.” The system provided for the distribution of this fund is such, that so…

The original bill in this cause, filed in 1855, prayed for a decree requiring the defendant to execute and deliver to the complainants a lease for ninety-nine years of a certain amount of water, to be taken from the dam therein described, pursuant to the alleged covenants for a renewal contained in a previous lease.

<p> Appealable order. </p> <p>An order requiring a party to an action to submit to an examination as a witness for the opposite party, being a substitute for a bill of discovery, is a provisional remedy, and is appealable. Tay. Stats., 16S5, § 11.</p>

This action was brought in May, 1871, to revoke and annul an instrument purporting to be the last will and testament of Simeon Holden, late of Walworth county, deceased, and to set aside the probate thereof and all subsequent proceedings thereon. The defendants demurred to the complaint, and assigned all the grounds of objection thereto enumerated in sec. 5, ch. 125, E. S., except the objection that the court had no jurisdiction of the persons of the defendants.

The complaint in this action is stated in the report of a decision of this court upon a former appeal herein. 27 Wis., 272-275.

Action upon an oral promise of indemnity alleged to have been made by the defendant, Leopold Melms, and by which the plaintiff was induced to endorse a promissory note executed by William Melms, and payable to the plaintiff’s order, which note plaintiff was afterwards compelled to pay. The substance of the case was thus stated by Mr. Justice Cole, in his opinion. “ It appears that on the 10th of August, 1870, the plaintiff endorsed the note described in the complaint.

The complaint averred that for six; years last preceding the action, the defendant company had wrongfully maintained “ a certain dam and obstruction ” across the north channel of the outlet of lake Winnebago, at the village of Menasha, by means whereof the water of the lake had been raised and flowed back upon certain described premises of the plaintiff adjacent to said lake, and had wholly submerged the same, etc., to plaintiff’s damage $6,000.

On the 22d of October, 1863, tbe plaintiff, Daniel B. Turner, and Josiah Pierce, one of tbe defendants, entered into a written contract for tbe sale and conveyance of lands by tbe former to the… Held: further, that the two causes of action so found, one legal and the other, equitable, were properly joined, or, if not, that the objection was waived by a failure to demur to the complaint for a misjoinder.

Ejectment, brought by Emmeline S. Whitney, widow and de-visee of Daniel Wbitney, James S. Balcer and Louis B. Portier. Held: therefore, to have sued in his own right (Qrantman v. Thrall, 44 Barb., 173 ; Fowler v. Westervelt, 40 id., 374; Merritt v. Seaman, 2 Seld., 168); but no title in him in his own right is claimed. 2. The defendant proved a perfect title in Elisha Morrow, under whom he has possession.

In April, 1872, an information was duly filed in the municipal court of the county of Milwaukee, by the district attorney of that county, which charges that on the 10th day of February, 1872, at said county, the plaintiff in error “ did willfully, feloniously and of his malice aforethought, assault, beat, wound and ill-treat Julius Schroeder, with intent, then and there, him, the said Julius Schroeder, willfully, feloniously and of his malice aforethought, to kill and…

This action was brought to recover a lot of land containing about one and one-fourth acres, being part of the northeast quarter of section five, in township thirteen north, of range fifteen east, in the county of Dodge; which lot is particularly described in the complaint by metes and bounds. The complaint is in the usual form of complaints in actions to recover real property. The answer is, 1. The general denial. 2. Title to the demanded premises in the defendant. 8.

Action to redeem from a mortgage sale, brought by Mary M. Jfihle (wife of Nicholas Ehle) against Hawkins, the grantee in the sheriff’s deed, and Brown, Qillelt, Simmons and Charles, purchasers under Hawkins. The facts found by the circuit court will appear from the opinion.

Action for a conversion of logs. In October, 1868, the plaintiff and defendant entered into a written agreement, by the terms of which Smith “ sells to said Scott the undivided one half of all the pine timber which will makegood, merchantable lumber, both standing and lying ” on certain described lands situate partly in a certain section 3, and partly in a certain section 2, in different townships in Shawano county.

This action was between tbe same parties as that just reported (p. 42(1), and was founded upon tbe written contract there set forth. It was brought to recover damages for several breaches of that contract on defendant’s part. The testimony seems to be directed to the following alleged breaches: L The failure of defendant to employ a sufficient number of men and teams on section 3 to cut, haul and bank 1,200,000 feet of timber, in the season of 1868-9, as agreed; 2.

■ This action was commenced in Marathon county, and the venue changed to the county of Green Lake.

Tbe plaintiff, Mundt, recovered judgment against tbe defendant, before a justice of tbe peace, for labor performed in tbe construction of defendant’s railway, from wbicb judgment defendant appealed to tbe municipal court.

Action for the unpaid balance of the purchase price of goods alleged to have been sold by plaintiff to defendant in November, 1869.

Action for money bad and received. Answer, a general denial. Tbe substance of tbe facts proven at tbe trial is stated in tbe opinion. Tbe moneys paid by plaintiff were paid to defendant as treasurer of tbe association mentioned in tbe opinion.

Action for the foreclosure of a mortgage given by the defendant Charles Doty to one Field, April 25, 1859, and by Field assigned to plaintiff, the mortgage covering thirty-one lots constituting a portion of the southwest quarter of the southwest quarter of section 15, township 20 north, of range 17 east, in the village of Menasha.

In an action brought by the defendant against tbe plaintiff to recover certain lots in the city of Sheboygan, the former had a verdict therefor. The defendant in that action thereupon interposed a claim for improvements made by him upon the lots in question, and an issue was made up and tried, which resulted in an assessment of damages for sitch improvements, in favor of the present plaintiff, in the sum of $350.

' APPEAL from tbe Circuit Court for Racine County. Action to have certain conveyances of land from plaintiff to defendant annulled for fraud, and to bave defendant adjudged to reconvejr, etc. Tbe facts alleged in tbe complaint as tbe ground for tbis relief are substantially as follows: Tbe plaintiff has been for many years last past a resident of Burlington in said county; and on tbe 6tb of December, 1871, be was, and for ten years immediately prior thereto bad been, tbe…

This action, for damages alleged to have accrued to plaintiff from a change made by the defendant city in the grade of a street after such grade had once been established, was commenced in the circuit court for Milwaukee county; but, on plaintiffs motion, based upon affidavit, the place of trial was changed to Racine county. The plaintiff had a verdict for $1,968 damages; and, a new trial having been denied, the defendant appealed from a judgment on the verdict.

This action was brought to recover damages alleged to have accrued to plaintiff in consequence of an alteration alleged to have been made by the defendant city in the previously established grade of a street. The defendant had a verdict; but upon plaintiff’s motion the verdict- was set aside and a new trial granted; and from this order the plaintiff appealed. The questions presented by the record will sufficiently appear from the opinion.

Action upon an undertaking entered into in a gamjshee proceeding to procure the discharge of the garnishees from liability, under sec. 2, ch. 58, Laws of 1869. The plaintiffs appealed from an order sustaining a' demurrer to the complaint as not stating a cause of action. The facts set up in the complaint will sufficiently appear from the opinion. as to the proper construction of the undertaking sued upon, cited Van Dyke v. Weil, 18 Wis., 277. 1.

‘ The action was for recovery of the possession of a certain schooner and its tackle, etc., or for the value thereof in case a delivery could not be bad, with damages for the detention, etc. The complaint avers that on, etc., the plaintiff was lawfully possessed of the property, and that the same was of a certain specified value; and further alleges, with specification of time and place, that the defendant Mitchell, by direction and authority of the defendant Carney,…

The plaintiff leased to the defendant certain premises situate at the corner of Main (or Broadway) and Huron streets in the city of Milwaukee, which were used by defendant in his business as a gas fitter and manufacturer of steam beating apparatus. This action was brought upon tbe lease, to recover two quarters’ rent, falling due, respectively, on tbe first days of August aud November, 1871.

One Crilley payed Huron street in Milwaukee with Nicholson pavement, under a contract with the defendant city, and received from the board of public works the usual certificates for the work, including one for paving said street in front of the west thirty feet of the east sixty feet of lot 6, block 14, in the third ward of said city.

This action was founded upon an indenture of lease, dated February 23, 1866, and executed by tbe plaintiff as party of • tbe first part, and… Held: used and occupied them, and still continues so to do; “ whereby said city became, and this plaintiff hath elected, and hereby elects to consider said city, the tenant of this plaintiff, of said premises from year to year upon the terms of said lease, according to the statute in such cases made and provided, and whereby said city…

This action, by Louis Rothe against Catharine Rothe, was commenced in a justice’s court. Tbe allegations of tbe complaint will sufficiently appear from tbe third paragraph of tbe opinion. The answer was a general denial. Tbe justice rendered judgment in favor of tbe plaintiff for $111.98, damages, and for costs.

This action was against George and Alfred Young, to recover damages for personal injuries received by the plaintiff.

APPEALS from, the Gireuit Court for Iowa County. Both parties appeal from the judgment in this case. The questions of fact and law presented by the record are stated with sufficient fullness in the opinion.

The relation alleges that the defendant Sarah Smith made due complaint in writing, on oath, to George McWhorter, Esq., a justice of the peace, pursuant to ’ch. 87, R. S., stating in such complaint that she had been delivered of a bastard child then living, and that the same was begotten by the relator ; that the relator was arrested on a warrant issued by the justice upon such complaint, and, after a full examination into the matters charged in the complaint, the complainant…

This action was brought by the assignee of a bankrupt, to recover the value of a stock of goods alleged to have been transferred by the bankrupt to the defendants, in fraud of the provisions of the bankrupt law, less than four months before the filing of the petition in bankruptcy, in contemplation of insolvency, and for the purpose of giving a preference to the defendants as creditors, and with knowledge of the facts on their part, and not in the ordinary course of business…

On the 11th, 12th and 13th of May, 1870, various boxes and other packages of goods were shipped at Milwaukee to be carried upon the defendant company's road to La Crosse in this state, and to be thence carried by the Southern Minnesota Railroad Company, and delivered to the plaintiff as consignee, at Lanesboro, in Minnesota.

The complaint alleges that the defendant, in the year 1860, executed to one John C. Schroeling a lease of certain premises in Port Washington, for the term of five years, at a stipulated annual rent, which lease was in writing and sealed by the parties thereto; that soon after the execution of such lease, the defendant, for a valuable consideration, assigned the rent for the third year, and one half the rent for the fifth year, to John Witman, the plaintiff’s testate; and…

The plaintiff appealed from a judgment rendered in favor of the defendant, in pursuance of the verdict of a jury. The following statement of the case was originally prepared by Mr. Justice Cole as a part of bis opinion herein. “ This action is brought to recover the sum of $1,416, alleged to have been received by the defendant for the use of the plaintiff, or which the defendant owed the plaintiff.

APPEALS from tbe Circuit Court for RocJc Couuty. Action to restrain tbe collection of certain special assessments made against plaintiff’s lots fronting on West Milwaukee Street in tbe city of Janesville, for grading that street and repaving ^t witb tbe Nicholson pavement.

Action by Henry G. McArthur against Gyrus Schench and bis wife, Mary S. Schench, to foreclose a mortgage for $2,500, executed by tbe defendants to tbe plaintiff, October 1st, 1869, to secure two notes of $1,250 each, made tbe same day by Gyrus Schench, payable to plaintiff’s order on tbe 1st of October in tbe years 1874 and 1875, respectively, with interest at tbe rate of ten per cent, payable annually.

Tbe amended complaint in tbis action alleges that tbe plaintiff is the owner in fee simple, bas tbe legal title to, and is in possession of certain described premises, and that defendant makes and sets up a claim thereto; and demands judgment that when plaintiff shall have substantiated bis title to said land, defendant shall be adjudged to release all claims thereto, etc. Tbe defendant demurred to tbe complaint as not stating a cause of action; and tbe plaintiff appealed…

Action to recover tbe-possession, or the value, of a quantity of brick. Tbe case is stated in the first paragraph of the opinion. The plaintiffs appealed from a judgment in favor of the defendants. contended, among other things, that the eighth instruction asked by plaintiffs (and which is recited in the opinion) was properly refused, because it ignored the question as to who owned the property at the time of the sale to plaintiffs.

APPEALS from tbe Circuit Court for Waupaca County. FIRST CASE.

Tbis appeal was taken by tbe plaintiffs from an order of said court setting aside an order of tbe county judge of said county reducing tbe costs taxed by tbe clerk of tbe circuit court against tbe plaintiffs in tbis action. argued that every direction in writing of a court or judge is either a judgment or an order; that tbe direction given on review of tbe clerk’s adjustment of the costs is not a judgment (B. S., cb. 132, secs. 20, 25 ; Bam on Legal Judgment, 52; 3 Black.