Volume 44 — Wisconsin Reports

Action by Delaplaine and Bv/rdielc against P. T. Turnley and wife, to recover §200 for certain services rendered by plaintiffs at defendants’ request, between about the 1st of March and the 1st of November, 1876, in taking charge of real property in Madison, in this state, advertising it for sale, soliciting purchasers, procuring from one Parker proposals for an exchange, which were approved by the defendants, drawing deeds, etc. The complaint alleges that these services…

Action for injuries suffered by tbe plaintiff in tbe course of bis employment as a brakeman upon a freight train on a division of defendant’s road in the state of Illinois. Tbe substance of tbe complaint is stated in the report of a former appeal herein, 41 Wis., 478; and tbe evidence given at tbe trial, as well as tbe errors alleged here, will sufficiently appear from tbe opinion, infra. Tbe plaintiff had a verdict and judgment; and tbe defendant appealed.

Action against JohnD. Gurnee and one Eothwell Eeynolds, to recover about $500, claimed to be due from them to the plaintiff company for goods, wares, merchandise and machines sold and delivered to Eeynolds, and which Gttrnee bound himself to pay, by a bond set out in the complaint, bearing date May 13, 1871, duly executed and delivered by him and said Eeynolds to the plaintiff.

Action to compel a specific performance of an alleged parol agreement of tbe defendant Brown to convey to plaintiff a certain lot in Brown’s addition to tlie village of Baraboo. Tbe facts found by tbe court are as follows: On tbe 24th. of March, 1873, plaintiff and Brown entered into a parol agreement for tbe sale of said lot by tbe latter to tbe former, Brown agreeing to convey the title in fee simple free from incumbrances, on receiving payment therefor.

The case is thus stated by Mr. Justice Taylojs, in his opinion as originally prepared: “ This action was brought in the court below by Martha Howard against James O. Howard, to obtain a divorce from the bonds of matrimony.

The case, so far as passed upon by the court, is thus stated in the opinion of Cole, L, as originally prepared: “ The plaintiffs in this case sue as -administrators, with the will annexed, of Nehemiah Allen, deceased.

Ejectment, for a strip of land in lot 4, section 5 of a certain town in said county. Both parties claimed under one Paul Fox by grants of adjacent portions of said lot 4, and the question was one of the true boundary between them. The answer, after a general denial, claimed adverse possession in the defendant for more than twenty years. On the 1st of J une, 1849, Paul Fox owned said lot 4, and lot 3 adjoining it on the west.

Ejectment, for a strip of land 22 feet in width, alleged to be a part of lot 9, block 9 in Eastman’s addition to tbe city of Green .Bay.

Ejectment. The defendant had a verdict, by direction of the court; and from a judgment thereon the plaintiff appealed. The case is stated in the opinion. They contended, 1. That the court erred in the admission of evidence for the defendant. 2. That plaintiff’s evidence tended to show title in him by adverse possession under see. 6, ch. 138.

Action on a quantum meruit for tbe plaintiff’s labor and services, and materials furnished by it, in constructing and repairing defendants’ steam saw-mill, and machinery therein.

The complaint alleges that, at the times of the sale and delivery of the goods therein mentioned, plaintiffs were, and still are, partners in business at Chicago, Illinois, under the name of Tolman “$263.76. Office of TolmaN & Waleer, “ CniCAGO, June 22, 187J. “Pay to the order of Eirst Nat’l Bank two .hundred and sixty-three dollars with' exchange, value received, and charge to account of - Toumabt & WalKer. “To Mess.

<p>No appeal to supreme court in criminal cases.</p> <p>APPEAL from the Municipal Court of Milwaukee County.</p>

Galutia O’Dell died at Milwaukee, in this state, April 26, 1870. The plaintiff Oelestia A. O'Dell is his widow, and the plaintiffs George W. O'Dell, Zeruiah A. Reynolds and Emma A. JELewitt, and the defendant Mary G. Brewer, are his children and heirs; and • the defendant Erederiek Brewer is the husband of said Mcvry O. Brewer. Emma A. Hewitt did not become twenty-one years of age until October 17,1873.

Tbe case is thus stated by Mr. Justice Cole, in bis opinion as originally prepared: “ This action is brought to foreclose a mortgage given by Girard and Drake and their 'wives to the plaintiff Scott, to secure tlie payment of seven promissory notes. Tbe mortgage was dated March 24, 1875, and but part of the mortgage debt was due when tbe action was commenced.

Replevin, for saw-logs. The decision of this court upon a former appeal herein will be found in 39 Wis., 260. The present appeal was taken by the plaintiffs from a judgment for the defendant.

Action on a policy of insurance against fire. The facts admitted. by the pleadings or established by special verdict (in accordance with a stipulation of the parties), will sufficiently appear from the opinion. Judgment in plaintiff’s favor was rendered on such verdict, for the amount of the loss; and the defendant appealed. They contended, 1. That the local agent, Beyer, had no authority to waive the condition in respect to occupancy.

Trespass qua/re clmisum. The premises were nine forty-acre tracts in sections 24 and 25 of a certain town; and the trespass alleged consisted in cutting and removing pine timber therefrom. Answer, a general denial. The real issue was, whether plaintiff had title to the lands. Four of the forty-acre tracts had been sold for taxes. Plaintiff claimed under the tax deed, and defendant as former owner. The facts found by special verdict will sufficiently appear from tbe opinion.

Tbe following statement of tbe complaint is taken from tbe opinion of Mr. Justice Taylok as originally prepared: “ Tliis is an action brought by tbe plaintifij tbe owner of certain real estate in tbe city of Oconto, to set aside certain tax certificates, issued by tbe county of Oconto upon tbe sale thereof for unpaid taxes. “ Tlie complaint does not charge that there was any illegality in the assessment of the real estate upon which the taxes were levied, nor in the…

<p> When judgment perfected. </p> <p>Judgment for relief and costs is not perfected so as to be appealable until the costs are ascertained and inserted; and an attempted appeal from a judgment not so perfected is dismissed, with costs.</p>

The complaint alleges that the defendant company constructed a section of its road across certain streets of the plaintiff city, and thereafter, though often requested so to do, neglected and refused to restore said streets to their former condition, so as not to impair their usefulness; and that the plaintiff, in 1872 and 1873, expended large sums of money to restore said streets to their former condition, and make them suitable for public travel, amounting to §859.05.

Action to avoid the proceedings of the county.of Shawano in assessing certain lands for taxation in 1872, and subsequently selling the lands, for the unpaid taxes of that year, and to restrain the issue of tax deeds upon such sale. The question at issue, and the essential facts bearing upon it, are sufficiently stated in the opinion. The circuit court held the tax sales valid, and rendered judgment accordingly; from which the plaintiffs appealed.

Ejectment. Defendant appealed from an order of the circuit court refusing to set aside a judgment in favor of the plaintiff. The case is stated in the opinion.

[The exact question determined by the court does not seem to be discussed in the briefs on this side.] They contended that where words are spoken to one person, and he repeats them to another, in consequence of which the party of whom they are spoken sustains damage, the party who repeats tbem is alone liable for damages.

Neplevin, for a sewing machine. The essential facts are thus stated by Mr. Justice Taylob in his opinion as originally prepared: “ The evidence shows that one W. H. Lyman was employed as the agent of the plaintiffs in the spring of 1873, for selling the Yictor Sewing Machine in a part of Chippewa county, including Chippewa Falls; that the plaintiffs were not doing business at that time in Chippewa Falls, except by said Lyman as agent; that sometime in the spring of 1873,…

APPEAL fi'om the Circuit Court for Rock County. This action haring been sent back to the circuit court for a new trial, after the former decision of this court herein (40 Wis., 66), plaintiff obtained a verdict affirming his title and assessing his damages. An issue was thereupon made up as to defendant’s claim of purchase money, improvements and taxes.

Action for an assault and battery. It appeared on tbe trial that tlie defendant bad been prosecuted criminally, and fined, for tbe assault and battery here charged.

Action to restrain defendants from, erecting or maintaining a boom in and across the Wisconsin river between sec. 32, T. 24 N., R. 8 E., and the north line of T. 24, R. 7 E., in Portage county.

The case is thus stated by Mr. Justice Taylor: This action was brought to recover the undivided one-half of two city lots, situate in the city of Eau Claire.

<p>APPEAL from the Circuit Court for Eau Claire County.</p> <p>The case is sufficiently stated in the opinion. The defend ■ ant appealed.</p>

<p>APPEAL from the Circuit Court for Earn Claire County.</p> <p>The case is sufficiently stated in the opinion. The defendant appealed.</p>

<p>Ejectment: New trial without cause.</p> <p>Under sec. 20, ch. 141, B. S. of 1858, as amended (sec. 1, ch. 249 of 1873), which declares, in reference to actions of ejectment, that “no more than one new trial shall be granted under this section, ” when one party, taking a second trial under that section, obtains a verdict and judgment in his favor, the other party, successful on the first trial, is not entitled to a new trial without cause.</p>

Action against Eobert Hughes and Hugh Hughes on an alleged indebtedness to plaintiff for goods sold by him to the firm of Hughes Bros, (consisting of these defendants) before its dissolution. ’ Eobert Hughes did not answer. The defense set up by Hugh Hughes will appear from the opinion.

Replevin, for a mare seized by plaintiff as town treasurer, by virtue of a tax warrant, for tbe collection of an unpaid tax, and afterwards taken from bis possession by defendant. The jury found that defendant was entitled to possession at the commencement of this action, and assessed the value of the mare, and nominal damages for the detention. The judgment in plaintiff’s favor was for such nominal damages and the costs; and defendant appealed therefrom.

Action for the sum of $400, alleged to have been collected by the defendant’s agent at Marshalltown, Iowa, from one Downs for the use of the plaintiff, and transmitted to defendant’s agent at Racine in this state, but which, it is alleged, the latter has neglected and refused to pay over to the plaintiff on demand. The facts shown by the evidence as understood by this court, will appear from the opinion.

After tbe plaintiff herein, Ernestine Guenther, bad obtained, in tbe county court of Milwaukee county, a judgment for divorce and alimony against August Guenther, and after tbe death of said August, this action was brought in tbe circuit court for said county, upon a bond given by order of tbe county court, by August Guenther and the defendant Jacobs, to secure payment of the several installments of alimony as the same should become due upon the judgment of the county court,…

This appeal was taken by the plaintiff from a j udgment of the county court dismissing the complaint. The case is sufficiently stated in the opinion.

Action by the widow of George Erdmann for §1,000 alleged to have become due ber from the defendant in consequence of the deatli of ber husband, who is alleged to have been at the time of his death a member in good standing of Armin Lodge No. 9 of the order of Herman’s Sons of this state, incorporated by chapter 189, P. & L. Laws of 1871.

Action for three times the excess, above the rates prescribed by ch. 273 of 1874, of the amount paid by plaintiffs to the defendant for the carriage of lumber. The decision of this court on the former appeal herein will be found in 40 Wis., 294, where the facts are more fully stated. After the cause was sent back to tbe circuit court, a second trial was bad, May 15, 1877.

Plaintiff took from the defendant Sawyer, at Milwaukee in this state, in 1864, a bond for the payment of moneys then loaned to him by plaintiff, and a mortgage of land in this state as a further security therefor. This action was brought on the bond and mortgage, upon an alleged default of said defendant.

This action was brought to recover damages for the alleged negligence of the defendants in placing and leaving in an open space, or passageway for teams, in the rear of their store, in the city of Milwaukee, certain caustic substances, through which the teamster of the plaintiff drove the team of the latter, by means whereof the horses were injured. It appears that the defendants occupied a store on the east side of West Water street, as tenants of the owners.

The case is thus stated by Mr. Justice Taylob in his opinion as originally prepared: “ This is an appeal from the judgment of the circuit court of Milwaukee county reversing the order of the county court of said county, admitting to probate the last will and testament of John Meurer, deceased. “ The record shows the following proceedings in the circuit court: “1. An order of said court dated May 17, 1877, directing certain issues in said action to be tried by a jury. “2.

Action for libel. Tlie complaint avers that, at the time of the alleged libel, plaintiff was in business as a hardware merchant in Oconomowoc, in this state, and was of good name, credit, etc., in said business; that, on etc., defendant “ maliciously composed, uttered, wrote and sent to R. Dunn & Company, in Milwaukee, Wisconsin (a commercial agency), of and concerning the credit and standing of this plaintiff, a certain article in writing,” which is recited at length, and…

After certain averments as to defendant’s corporate character, and its business as a common carrier, the complaint alleges, in substance, (4) That, at a time and place named, plaintiff delivered to defendant in good order, and defendant received as a common carrier, three horses and certain other property belonging to plaintiff, of a certain value; and that defendant then and there became bound by law, and undertook and promised plaintiff, to take care of said property, and…

Ida Louisa Pierce presented her petition to this court foi a writ of habeas corpus, in wbicb she alleged that sbe was unlawfully restrained of her liberty, and imprisoned in the common jail of the county of .La Orosse, by Charles L. Halstead, sheriff of said county, for a supposed contempt in disobeying a decree of the circuit court for that county, made in an action for a divorce, in which Fred.

ACTION in this court to recover for plans, specifications and drawings, furnished by plaintiff for the Northern Hospital for the Insane, and for his services in .superintending the con struction of said hospital. Former decisions in the cause will be found in 42 Wis., 377-391, and 43 id., 381-392, where the pleadings are fully stated. After the latter of these decisions, the cause was again sent to the circuit court for Dane county for a trial of the questions of fact.

<p> Exceptions. </p> <p>An exception “to the first, second, third, fourth, fifth and sixth findings of fact” (being all there were), as “contrary to the evidence, and not supported thereby,” held equivalent merely to'a general exception, and, where one or more of the findings were obviously correct, insufficient to require a review of the evidence.</p>

This appeal was taken by seven of the defendants from a judgment of the circuit court in the action. The case is sufficiently stated in the opinion.

Action to recover possession of real estate. The conijolaint purports to state two distinct causes of action. 1.

The case is thus stated by Mr. Justice Taylor, in his opinion as originally prepared: This action was brought to recover of defendant the value of a piano which plaintiff alleges he owned, and defendant unlawfully converted to his own use. The answer is, first, a general denial; second, an averment that defendant purchased the piano of one Harry Keyes, in whose possession it was, in good faith and for value, believing said.

Action on a bank check. Defendants, in the firm name of Stanton & Son, on tbe 2d of August, 1875, at Waupun in this state, gave plaintiff, for value, their check on the Corn Exchange Bank of Waupun for $423.66. This check was never presented at the bank for payment. On the 10th of August, about 1-J o’clock P. M., the bank suspended payment, and said check has never been paid.

Action commenced in justice’s court to recover $160, alleged to be the contract price of a machine sold to defendant by plaintiffs. The answer included a general denial. There was a general verdict for the plaintiffs, upon which the justice rendered judgment in their favor for the damages demanded, and costs.

It is alleged in the complaint that in September, 1857, the defendant Seth E. Hills was president, and the defendant Leander B. Hills was cashier, of the 'Waupun Bank, and that they and the defendant Leander Hills owned the entire capital stock of the bank; that the bank became insolvent at that time, and unable to pay its liabilities with promptness or in full, and was compelled to suspend payment; that, to enable it to resume business and to meet its liabilities, sundry…

Action for the amount of certain illegal tax certificates issued by the defendant county, and of which plaintiff is alleged to be the owner. Held: That as to all the certificates described in the first and second findings the action was barred by the statute of limitations. 2. That the certificates described in the third finding constitute no valid claim against the county. 3.

Action by husband and wife for injuries to tbe person of tbe wife, alleged to have been caused by a defect in a sidewalk upon a public street in tbe defendant city.

'Ejectment, against Alonso D. Jones. The case is thus stated by Mr. Justice Tatloe in bis opinion as originally prepared : “This is an action of ejectment to recover the possession of seventy-five acres of land situated in Manitowoc county.

BEPOETED from the Circuit Court for La JLayette County. The case is thus stated by Mr. Justice Cole, in his opinion as originally prepared: “ An information was filed by the district attorney in December, 1876, charging that on the 28th day of November, 1876, the defendant, then and there being county treasurer of La Eayette county, and, by virtue of his office, entrusted with the collection, safe-teeping, receipt, transfer and disbursement of the taxes, revenues, fines and…

<p> Reversal of Judgment. </p> <p>Where there is some evidence to sustain the verdict, judgment "will not he reversed on the ground that the verdict is unsupported by the evidence.</p>

Action for the price of a yoke of oxen sold by tbe plaintiff to tbe defendant. Tbe defense was, that plaintiff warranted the oxen to be sound and true, and that they would in all respects answer defendant’s purposes; and that there was a breach of the warranty. Defendant bought the oxen without seeing them, and explained to plaintiff that he wanted them to work at logging in the woods. The sum agreed on as the purchase price was $118.

The complaint stated three separate causes of action: the first for a balance due plaintiff upon certain alleged partnership transactions; the second and third for certain sums of money alleged to have been loaned by plaintiff to defendant. The answer denied that plaintiff and defendant were ever co-partners; denied generally the first and second canses of action; and set up a counterclaim.

Replevin. Defendant justified as sheriff under an attachment against the goods of one Earnham, at the suit of one Allen, a creditor of Earnham; alleging that the mortgage from Earnham under which plaintiffs claimed the goods, was fraudulent and void as to creditors. Upon a verdict for the defendant, a new trial being denied, judgment was rendered in defendant’s favor for ten cents damages, and $44.29 costs, and for a return of the- property to him.

Replevin, for lumber alleged-to have been wrongfully taken from plaintiff by defendant on the 18th of February, 1875. Defendant justified as sheriff, under an attachment duly issued against the property of one Boardman, at the suit of one Telling and others; alleging that the lumber, when the attachment was levied, was the property of said Boardman and one Palmer. The verdict in defendant’s favor is fully recited in the opinion.

This appeal was taken by the plaintiff from an order of the court. The motion papers disclose the following facts: The .action is for a malicious trespass ujjon land and for cutting and removing therefrom trees, logs and timber. The original complaint described the locus in quo as the east half of a specified quarter section of land, and demanded judgment for $500.

The case is stated in the opinion. contended, among other things, that when the judgment was entered there was on file an order in the cause settling a “ case ” with a view to the motion for a new trial;, that this order of itself stayed all further proceedings until plaintiff should be guilty of laches in bringing the matter to a hearing; and that it appeared from the record that there was no such laches.

<p> (1) Vacating execution sale for irregularity. (2) Presumption of regularity. </p> <p>1. A motion to set aside an execution sale of land will not be entertained unless made-within a reasonable time after the sale; and in this case an order vacating- such a sale for mere irregularity is reversed as an abuse of discretion, where there was an interval of twenty months between the sale and the motion to vacate.</p> <p>2. Quaere, whether it will not be presumed that the sheriff, in an execution sale of land, first offered the land in parcels (as the law required), in , the absence of affirmative proof to the contrary.</p>

Action by Foster, as indorser of a bill of exchange, against James Fall as drawer, The Monitor Iron Works Oomjpamj as payee, and W. J. Clifford as acceptor thereof.

The proper county court made an order bearing date December 29, 1876, requiring the administratrix of the estate of Martin Perkins to proceed forthwith to a final settlement of said estate, and to pay the debts proved and allowed against it. It is recited in the order that the assets in her hands as ad-ministratrix, less all proper deductions, amount to $27,786.05, of which $16,461.35 are uncollected book accounts; leaving in her hands assets to the amount of $11,324.70.

The appellant made complaint before a magistrate, charging that one Carl Dahm- had feloniously set fire to and burned in the night time a certain church building.

This was an appeal from an order of the circuit judge at chambers, modifying an injunctional order made by the court in this action. The appeal was brought under the provisions of sec. 19, ch. 264, Laws of 1860, as amended by sec. 2, ch. 139, Laws of 1861.

This appeal was taken by the defendant from a judgment of said circuit court affirming, upon certiorari, the judgment of a justice’s court in the same action, in favor, of the plaintiff. The case is sufficiently stated in the opinion.

Trespass, for damages to plaintiff’s land from the building, maintenance and operation of defendant’s railroad thereon. Defendant appealed from an order denying its motion for a stay of proceedings, in this and another like action by the same plaintiff, until an appeal from an award of commissioners in proceedings to condemn land of the plaintiff for its use, should be tried; or for a consolidation of said actions with said appeal.

SulUvan sued out a writ of error from this court to review a judgment against him in a criminal prosecution commenced by information. The judgment provided for his confinement in the' state prison for a term of one year. The offense with which he was charged, and the errors alleged, will sufficiently appear from the opinion.

Eor the appellant it was argued, 1. That, in the absence of any personal service of the summons, the clerk was not authorized to enter a judgment (Tay. Stats., 1501, § 32, subd. 1; Moyer v. Gooh, 12 Wis., 335; Wadsworth v. Willard, 22 id., 238); and that the judgment entered was not merely irregular, but void. The power granted .to the-clerk is of doubtful constitutionality at best ( Wells v. Morton, 10 Wis., 468), and must be strictly construed and pursued.

The plaintiff delivered to the defendant Beach, for service, a summons and complaint in an action brought by him against several defendants residing and being in the county of which Beach was sheriff. At the same time the plaintiff furnished Beach with the necessary number of printed copies of the summons and complaint, and he used such copies in making the service.

In November, 1874, one Baker was declared by the board of county canvassers of Wood county to have been elected clerk of that county at the preceding general election; and in December following, the plaintiff and others as sureties, with said Baker as principal, executed the official bond given by the latter as such clerk.

Plaintiff appealed to said circuit court from a determination of the defendant board rejecting his claim for the amount of certain illegal tax certificates purchased by him from one Houston, and by… Held: prior to his taking actual possession of the land (Smith v. lewis, 20 Wis., 355; Lybrancl v. Haney, 31 id., 230); and plaintiff acquired that right from him. 2.

This appeal was taken by the defendant from a judgment in favor of the plaintiff. The case is sufficiently stated in the opinion.

On the 14th of April, 1877, the defendant Lewis P. Erdahl was arrested by virtue of a warrant in a bastardy proceeding, duly issued by the judge of the municipal court of Madison, and brought before said judge.

<p>Appeal to Supreme Court: Conditional order; waiver of right to appeal.</p> <p>1. Where a party to an action applies for an order (as for a change of venue), which is granted upon some condition (as payment by him of costs), his performance of the condition and acceptance of the benefit of the order is a waiver of his right to appeal from that part of it imposing the condition.</p> <p>2. It seems that, if the order should grant the motion without condition, but should farther require the mover to pay costs, he might avail himself of the first part of the order, and still appeal from the second part at least before paying the costs, and possibly after.</p>

This action was brought in the circuit court by the late attorney general, upon the official bond of Henry Beets, late state treasurer, against Beets and his sureties in such bond. The term of office of the defendant Beets expired on the first Monday in January, 1874; and Ferdinand Kuehn was his successor therein.

Action for personal injuries received by the plaintiff while in the service of the defendant company as a laborer on its depot grounds in tbe city of Madison, and under the circumstances hereinafter stated. The pleadings present the questions whether plain tiff’s injuries were caused by the negligence of the other employees of the defendant, and whether plaintiff was guilty of negligence which contributed thereto.

From some time in tbe year 1865, until some time in February, 1868, tbe parties to this suit were partners in the business of buying and selling live stock, agricultural implements, etc., at Madison, in this state. Upon tbe dissolution of this copartnership, defendant formed a copartnership with one Hill at the same place; and the firm of Hill & Vaughan occupied for the transaction of their business the same premises previously occupied by Vaugha/n d& Gilman.

The case is thus stated by Mr. Jnstiee Taylok, in bis opinion as originally prepared: “This action was commenced on the 7th day of July, 1858, against the railroad company, the present appellant, and L. B. Bloomer.

The cause is thus stated by Mr. Justice Taylob, in his opinion as originally prepared: This action was brought to recover a penalty for obstructing a public highway, and a verdict was rendered in favor of the plaintiff in the court below; and from the judgment entered thereon, the defendant appealed to this court. The appellant relies upon the following assigned errors: 1.

<p>APPEAL from the Circuit Court for Juneau County.</p> <p>This case was argued with the foregoing one, by the same counsel.</p>

In February, 1876, plaintiff presented to the board of supervisors of Barron county, a claim for $200 as cash paid by him to the county on a purchase of tax certificates, $75 for expenses incurred in such purchase, and $5,000 as damages for failure of the county to complete such sale. The claim having been rejected, he took an appeal to the circuit court; and the venue was changed to the circuit court for Eau Claire county.