Volume 9 — Wisconsin Reports

The complaint in this action shows that Krebs is the owner of lot 3, in block 11, in the fifth ward of Milwaukee, and in possession and occupancy of the same; that it is worth $5,000 ; that on the 25th of June, 1850, one Barzilla Throop owned the lot; and borrowing money of the State, he mortgaged it to secure the payment of $400 and interest, and then sold it to the plaintiff; that the interest due on the mortgage was paid up to 1856; that Herman Haertel, a subsequent…

<p>Orders and Decrees — Sales on Judgment — Jurisdiction— Estoppel.</p> <p>Wliere a defendant had procured an order confirming a sale, to he. set aside, and produced evidence tending to impeach the regularity of the sale, but the circuit court affirmed the former order of sale, from -which last order the defendant toot an appeal, and the order of the circuit court was here reversed, with instructions to the circuit court to receive certain evidence relating to proof of the publication of the notice of sale ; after the cause had been remanded to the circuit court, an order was made to open the sale, and new testimony adduced to impeach the regularity of the sale: Held, that this last order was erroneous, and must be reversed.</p> <p>An express adjudication by the circuit court, confirmed by the supreme court, cannot be again opened.</p>

<p>Constitutional Law — Jury—County Supervisors — Counties.</p> <p>The act providing that the judge of the circuit court of JefFerson county, should “ select from the lists prepared by the last board of 'supervisors, the grand and petit juiors,” is not in violation of the constitutional provisions relating to trials by jury.</p> <p>To preserve the right of trial by jury it is not necessary to continue any particular mode of disignating jurors, though such mode was in force at the time of adoption of the constitution; but the mode is within the control of the legislature.</p> <p>where an act required the selection of jurors to be made “ from the lists prepared by the last board of supervisors,” it will be complied with by making selections from the lists last prepared.</p> <p>The board of supervisors is a corporate body with perpetual succession, and continues from year to year, though the persons composing it may change.</p> <p>Where the legislature had unconstitutionally detached five towns from Dodge county, and attached them to Jefferson, those towns formed no part of Jefferson county, from which jurors of the latter county should be taken.</p> <p>The State ese ret. Brayton et al. vs. Merriman, 6 Wis. 14, approved.</p> <p>A jury selected according to law is a constitutional jury as equally as one drawn hy lot.</p>

The facts in this case may be stated thus: On the 6th day of December, 1856, the plaintiff, Pierce, commenced his action in the circuit court for Milwaukee county, for the foreclosure of a mortgage against the defendant Kneeland as mortgagor, and the defendant Mariner as a subsequent purchaser of all or some portion of the mortgaged premises. On the 10th day of March, 1857, the defendants filed their answer to the complaint, to which answer the plaintiff subsequently replied.

<p>ORIGINAL ACTION, POR MONET CLAIM.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

This was an action brought to foreclose a mortgage by the respondent against the appellants, as subsequent purchasers of the mortgaged premises, who had assumed the mortgage debt, together with the original mortgagors and sundry subsequent purchasers and incumbrancers.

The complaint of the Marine Bank averred, that it was a corporation in the State of New York, located at Buffalo; that the International Bank is also a corporation at the same place; that F. M. Hale made a mortgage to Cobb & Anderson, to secure the payment of $39,700, with interest, dated March .16, 1857; and also gave eight promissory notes, dated that day, and payable to Cobb & Anderson; one for $5,700, payable July 1st, 1857, one for $6,000, payable July 1st, 185S, and…

This was an action brought by the appellant against the respondents and others, in the circuit court of Milwaukee county, for the foreclosure of a mortgage given by John Rooney to William Phelps, on two parcels of ground, to wit: Lot 4 in sub-division of quarter blocks 21,22, 23 and 24, Sic.-, and the south one-third of lot 4, in block 5, in the third ward of the city of Milwaukee, dated May 21st, 1856, to secure $3,300, and interest.

On the 17th day of June, in the year 1847, Perkins and Murphy formed and entered into a co-partnership for the purpose of carrying on the lumber business in the city of Milwaukee, and continued to carry on the business together until the 23d day of May following, when the partnership was dissolved by mutual consent.

<p>. APPEAL PROM CIRCUIT COÜRT, RACINE COUNTY.</p> <p>The facts in this case are sufficiently stated in the opinions of the court, and in 2 Wis. Rep., 533.</p>

The facts in this case are briefly as follows: Sometime in the year 1847, John Robinson instituted a suit by foreign attachment, under the provisions of the Revised Statutes of the Territory of Wisconsin, against Josiah R. Dorr, wherein divers parcels of land, and among others Lot 3, Block 32, in the Third Ward of Milwaukee, was attached. The title of record at the time was in Dorr.

The action on which this appeal is brought, was instituted in the circuit court of Milwaukee county. The complaint shows that the plaintiffs had sold and delivered to the defendants goods, &c., of the value of $1,412, upon credit, tobe paid at different times, and that $1,316 had been paid, and claimed a balance of $157 for principal and interest.

This is an appeal from an order appointing a receiver. The facts of the case are sufficiently stated in the opinion of the court.

This was an action in the circuit court of Milwaukee county to recover the value of 129 cords of wood delivered to the defendants, and which the defendants had sold for the plaintiff, who claimed $139 36 as the balance due.

<p>ERROR TO CIRCUIT COURT, MILWAUKEE COUNTY.</p> <p>The facts in this case aie sufficiently stated in the opinion of the court.</p>

This was an indictment against the plaintiff in error, found by the grand jury of the county of La Crosse, at the March term, 1858, for larceny in stealing a large quantity of jewelry, watches and money, in July, 1857.

This was an action brought by the appellants against the respondent on the following contract : “ Palmer & Williams’ Patent Seff-Raking Reaper: — Messrs.

This was an action of replevin under the code to recover the possession of a threshing machine. The complaint alleged the ownership of the plaintiff, the possession of the defendant, and a demand and refusal to deliver, &c., in the usual form.

This was an action brought by the plaintiffs under the mechanic’s lien act, as lumbermen, for furnishing $206 worth of lumber and materials used in the construction and erection of a dwelling, on a lot in the village of Fox Lake. The petition and complaint are in the usual forms.

This action was argued at the bar by the counsel of the parties, and submitted on its merits, but as the case was decided upon the want of jurisdiction in this court, because no judgment had been entered in the court below, no further statement of the facts of the case or argument is demanded.

This was an action commenced before a justice of the peace of Dodge county, to recover upon the contract set out in the complaint. The pleadings were in writing, and the justice gave judgment for the plaintiff; from which the defendants appealed to the circuit court.

This was an action commenced by the plaintiff by a bill in chancery in the circuit court of Waukesha, on the 28th of August, 1856, for an injunction to restrain the defendants from rebuilding a dam across the Oconomowoc river, in Oconomowoc, in that county. The bill states that the plaintiff was the owner, and possessed of two eighty acre tracts of land, through rvhich the creek ran, and on which there was a good water power, which he intended to improve.

<p>Judgment — Practice—Appeal— Orders — Decrees.</p> <p>A person not. a party to the, record of a judgment cannot move the court to vacate the judgment for irregularities committed in entering up and docketing it.</p> <p>Upon an appeal from an order made on a motion by a stranger to the record, vacating the judgment, the supreme court will not examine into the regularity of the entry of the judgment; and it makes no difference, that the party making the motion has become a subsequent purchaser of lands upon which the judgment has become a lien.</p> <p>■ The case of Wood vs. Ciarle, 6 wis., considered and approved.</p>

This was an action in the nature of replevin, brought to recover the possession of personal property. On the 23d day of* June, 1858, the summons and an affidavit for the delivery of personal property, were issued to the sheriff of Badax county.

<p>APPEAL PROM circuit COURT, LAFAYETTE COUNTY.</p> <p>The facts in this case sufficiently appear in the opinion of the court.</p>

The application was for a mandamus, to compel the school land commissioners to annul an order made by them to vacate an entry of lands made by Henry Merrill, the relator.

<p>APPEAL FROM CIRCUIT COURT, CRAWFORD COUNTS'.</p> <p>The facts in this case are fully stated in the opinion of the court.</p>

<p>APPEAL PROM CIRCUIT COURT, CRAWFORD COUNTY.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

This was a civil action, Commenced in the circuit court of La Crosse county, by the service of a summons and complaint on the defendants, February 8th, 1858. The complaint was upon a bill of exchange made by the defendants by their firm name of Pike, Bacon & Co., directed to R. K. Swift Brother & Johnson, of ‘Chicago, Illinois, and verified by Alonzo Johnson, one of the attorneys for the plaintiffs.

<p>Bill of Exceptions — Finding■—New Trial — Practice.</p> <p>■Where a trial is had before the judge, without exception to the evidence, or motion for a new trial, nor other exception taken, except to the finding, the judgment will not be disturbed on the ground that the evidence is not sufficient to support the finding.</p> <p>The finding of a judge as to the facts, is equivalent to a special verdict of a jury; and an exception to the finding presents for review only the decisions upon matters of law.</p> <p>A review of the facts in the finding can only he had upon motion, for a new trial, and the decision of the court on that motion, may be reviewed in the supreme court, if the evidence he saved by a case or bill of exceptions.</p>

This was a suit in equity brought to foreclose a mortgage given by the defendants to the testator, Richard Lemon in his lifetime. The bill was in the usual form, and answered without oath, which admitted the making of the will, &c., also the making of the bond and mortgage, but denied that anything was due upon if.

APPEAL PROM circuit COURT, CRAWPORD COUNTY. This action was commenced before a justice of the peace of the town of Eastman, in Crawford county. The account filed in the justice’s court was in the words and figures following, viz: “ The Town of Prairie Du Chien, Dr. “ To Adolph Meyer, “To care and boarding pauper, from the 14th of June to the 7th of August, 1858, while sick, making seven weeks and five days, at $10 per week.”.

These two writs of mandamus are in all respects similar, except as to the tracts of land described in the writs. The one is for lots one and two, and the northwest quarter of section 23, town 27, range 27 east; and the other is for lots one and two, and the south half of the southwest quarter of section 14 of the same township.

This was an action brought in a justice’s court, by the plaintiff in error, to recover damages for taking down the fences and crossing the lands of the plaintiff In their answer the defendants claim that the fence was an obstruction to a public highway; that the lands passed over constituted the highway; that the defendant, Arnold, as chairman of the board of supervisors of the town, had a right to, and did order the obstruction removed; and the defendant, Ford, as overseer…

<p>ERROR TO circuit COURT, DANE COUNT?.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

The relation in this case sets forth that Gill was appointed by the commissioners of schools of the city of Watertown, in May, 1859, to the office of superintendent of schools in that city; and had qualified and entered upon the duties of the office, which was one of trust and profit.

This case ’was brought before this court by a certiorari to the county judge, to reverse an order made by him upon a proceeding in habeas corpus, releasing the relator from imprisonment. Bridget Boyle had been tried and convicted in the municipal court of the city of Milwaukee, for assault and battery, and fined one dollar with costs; and had been committed to jail for non-payment of the fine.

This was an action commenced in the circuit court of La Crosse county, by summons and complaint The appellant’s complaint stated, that in April, 1856, Denton and Charles McGregor entered into a contract and co-partnership with the appellant, to build and run a steam saw mill in La Crosse; that Denton was to furnish most of the cash capital for building the mill, and Lower and McGregor were to build the mill, as mechanics; Denton was to furnish the land on which the mill was…

This was an action brought by the plaintiff against the defendant on a promissory note for $200, and interest at twelve per cent, given by the defendant to the plaintiff for the purchase of a horse. The answer set up a failure of consideration of the note. On the trial the plaintiff read the note in evidence, and then proved that there was due on said note, for principal and interest, the sum of two hundred and sixty dollars and twenty-seven cents.

<p>APPEAL PROM CIRCUIT COURT, DANE COUNTY.</p> <p>The facts in this case are sufficiently stated in the opinion of the court.</p>

<p>Constitutional Law — Practice—Mandamus—Elections— Voter — County Seat — Publication of Laws.</p> <p>In an action by mandamus, it is proper practice for the respondent to move to quasli the alternative writ for defects in the application therefor.</p> <p>Applications for the writ are ex parte, and need only show a probable cause to allow it to be issued; but such allowance is not conclusive on the sufficiency of the application, and may be tested by a motion to quash.</p> <p>If an act providing for a vote on the removal of a county seat contains other qualification for voters, than' is prescribed in the constitution, then the act is unconstitutional and void.</p> <p>The case of 1Tie State ex rel. Knowlton vs. Williams, 5 Wis., 308, alluded to and approved.</p> <p>It is competent for the legislature to prescribe questions to be propounded to voters, calculated to draw from them the proof of their qualifications to vote at an election, and require the voter to answer them before he can vote; but this does not add any new qualification to the voter.</p> <p>The character of an act of the legislature whether it be a “general ” law or not, so as to require publication under the constitution, is determined by the greater or less extent to which it affects the people, rather than by the extent of territory over which it operates; therefore a law operating in a single county, but affecting the rights of all the people therein, is a general law.</p> <p>A law providing for the location of a county seat is a general law, and required to be published before it can go into effect, by the constitution, Art. VII, § 21.</p> <p>A law which incorporates into its provisions penalties for illegal voting, and for counselling or advising it; and which may apply to people residing outside of the county in which the vote is to be taken, is clearly a general law.</p> <p>It is a sufficient allegation in pleading that a law was not published, to state that the act was never published in accordance with the provisions of chapter 6, laws of 1858, “ nor in any other manner known to the law.”</p> <p>A motion to quash an alternative writ is in the nature of a demurrer to thé writ, and on overruling the same, the respondent should hare leave to answer.</p> <p>The allegations of the petition for an alternative writ of mandamus which are incorporated into the writ, performs the office of a declaration, and the respondent must, by his return to the writ, negative these allegations, and show a right to refuse obedience to the writ, in view of its allegations.</p> <p>A demurrer to a return to a mandamus tests the sufficiency of the return, and assumes all the allegations in the writ not denied nor confessed and avoided to he true.'</p> <p>A plea to a return to a mandamus traverses the return, when it has first answered the allegations of the writ; hut it need not repeat them, in order to obtain their benefit.</p> <p>A general law must be furnished to the state printer, “within one week after its passage,” and he is “required to immediately publish the same in a newspaper printed at the seat of government.” This act is not complied with, by a publication by the state printer several months after the passage of the law, and after the time for the publication of the law in the bound volume has expired; and such publication does not render the law effective.</p> <p>If the public printer fails to comply with the statute, by an immediate publication of a general law, in a newspaper at Madison, he may still give them effect by publication at any time prior to the publication and issuing of the bound volumes of the. laws, or by publication therein; but not after-wards .</p> <p>When the bound volumes of laws have been issued and distributed among the people, pursuant to law, they have the right to look to these volumes as containing all the laws by which they are to be governed, until the next session of the legislature.</p>

This was an appeal from an order of the circuit court of Kenosha county, confirming a sale upon a judgment of foreclosure, of a mortgage made by the defendant, Smith. Two motions were made and heard at the same time. One to confirm the sale, made by the plaintiff; and the other by the defendant, to set it aside. The first of these was granted, and the latter denied. The remaining facts of the case sufficiently appear in the opinion of the court.

This was an application by the respondent to the county court of Dane county, in Probate, praying for the removal of the. appellant from his office and trust of executor of the last will and testament of Mary P. H. Cutler, deceased.

This action was brought by the defendants in error against the plaintiff in error, to recover the value of certain goods sold by the plaintiffs below to King & Kellogg.

This was an action commenced by the respondent against the appellant, and one Carlos Hazard, a constable of the town of Hampden, in Columbia county, for trespass to personal property, in taking and carrying away a horse, of the value of $125, &c. The answer of the defendants admitted the taking, &c., but denied the value; and set up by way of justification, that at the town of Hampden such proceedings were had on behalf of the town against Roys, under, and in pursuance of…

This was an action of debt on a judgment record from the court of common pleas, Mercer county, State of Pennsylvania, by the defendant in error against the plaintiffs in error, in the circuit court for the county of Dane. The declaration was in the usual form, and contained only one count.

<p>Venue — Place of Trial — Practice.</p> <p>If a defendant before tbe time of answering expires, make an application demanding that the place of trial be changed to the county in which he resides, and where he is served with process, he is entitled to have such change made.</p> <p>■When a defendant had made a proper application for a change of the place of trial, he does not loose his right to have the change made, by putting in a demurrer to the complaint, and appearing and arguing the same before the judge at chambers.</p> <p>The right to have a change of the place of trial is a right secured to the party by the law; and when a proper application has been made, the party does not lose the right of resisting the entry of a judgment against him, in the court from which the change should be made.</p>

This was an action commenced in the circuit court by the defendant in error, upon the following note: “#300.

This was a bill in chancery under the old practice. The bill stated that Sophia Gunn was the child and heir at law of Joel Blair, late of the state of New York, who died in February, 1839, leaving a last will which made provision for Sophia as follows: “ I give and bequeathe to my daughter Sophia, the wife of Reuben L. Gunn, the annual interest of one-sixth part of all the goods and chattels and credits in possession or in action, I may die seized of, during her natural…

The facts of this case are stated fully in the former opinion of this court, 4 Wis. Rep., 363, and they will not be restated here.

This was an equitable action relating to certain trust property.

The cause of action in this case is sufficiently stated in the opinion of the court. A large amount of evidence was taken, fully establishing, by parol, the averments of the bill; but as it is rejected, in the consideration of the opinion of the court, it is omitted here.

This is an action brought against the defendants, by the plaintiff in error.

■ These two cases presented the same facts in nearly every particular, except they were for different tracts or lots of land. The statements of the complaints are given in the opinion of the court The respondents demurred separately in the circuit court, that the complaints did not contain facts sufficient to constitute a cause of action. The circuit court sustained the demurrer and dismissed the complaints.

APPEAL PROM CIRCUIT COURT, ROCK COUNTS’. This was an action by the respondent against the appellants in the court below, to restrain the issuing and delivery of a tax deed, and to declare void the taxes assessed oh the property of the respondent.

The facts in this case are so fully stated in the opinion of (this court, and in the finding of the circuit court, which follows, ■that no further notice will be taken of them. The cause was tried before the Hon. J. M. Keep, who found as follows: The bill of complaint in this cause is filed to restrain ■threatened injuries to the real property of the complainant, and prays a perpetual injunction.

This was an action of trespass for breaking and entering the close of the plaintiff, the same lots as described in the last case, and taking possession of the same, as the engineer of the Milwaukee and Mississippi Railroad.

This was an action brought to the circuit court by an appeal from an order of the county court in probate, refusing to allow the account of the appellant against the estate of Edward Fisher, deceased.

APPEAL PROM CIRCUIT COURT, COLÜMBIA COUNTS’. This action was brought in the circuit court for Columbia county; and as it was determined upon the complaint and demurrer, the complaint sets forth all the facts of the case.

This was an action to foreclose a mortgage made by Wells & Kirby on the 6 th of February, 1853,payable to Weissner, for $1506,67, in four years, according to their note. The complaint was served May 14, 1858. The answer set up an extension of the time of payment until February, 1859; and on that point the trial proceeded, and the finding which was made on the 24th of July, 1858, was against the answer.

This was a suit commenced by bill, to foreclose a mortgage given with a promissory note which was therein declared to be collateral to the mortgage, in Fond du Lac county.

This was an action brought by Day against Gleason in the county court for Dane county, for the wrongful taking of a horse and harness. Gleason denied that the property belonged to Day, and claimed it as his own. The case was tried by a jury who found for the plaintiff, Day, and assessed the property at #152, and judgment was rendered on that verdict.

<p>APPEAL FROM CIRCUIT COURT, ROCK COUNTY.</p> <p>The facts in this case are fully stated in the opinion of the Chief Justice.</p>

The facts in this case are fully stated in the opinion of the court, by the Chief Justice, in this and the preceding case of Croft vs. Bunster, and it was argued by the same counsel, and at the same time as that case was.

Heath commenced this action in Racine circuit court in the ordinary form, to foreclose a mortgage against Mary C. Van Cott, wife of Albert B. Van Cott, and Slawson. The mortgage was executed by Mrs. Van Cott and Slawson on premises owned by Mrs. Van Cott in her own right, the title to which vested in Slawsori in trust to her use. The mortgage bore date February, 1850, and secured two notes made by Mrs. Van Cott, and indorsed by her husband.

This was a complaint for divorce, filed by the husband Isidore Kaliseh against his wife, which avers the marriage and cohabitation in Cincinnati until the first of September, 1856, at which time she wilfully left and deserted him, and has never lived with him, or offered to return to him since ; that he had always kept, &c., his marriage vows; and she had no just cause to leave and desert him.

The facts in this case may be readily gathered from the opinion of the court, and they will not be here stated. On the final hearing before the circuit court the bill of complaint was dismissed; from which this appeal is taken.

This is an action for libel brought under the code by Lansing against the defendants, as publishers of “ The Daily Wisconsin Patriot,” for publishing the following, which was set out with innuendoes, applying the article to the plaintiff: “Old Habeas Corpus Lansing” — “ Old Lansing” — “Old blear-eyed toady, and supe to the Forty, is a creation of Judge Collins; and Judge Collins was supported by the Journal, Jlrgus, and Forty Thieves generally.” “It is intimated that Lansing…

This action was brought by Gaylord Blair for false imprisonment, upon a state of facts detailed in re Gaylord Blair, A Wis., 522; and also in Gunn et al. vs. Blair, reported in this volume, Supra, 352. The particular facts upon which this appeal is founded are detailed in the opinion of the court.

APPEAL PROM circuit COURT, MILWAUKEE COUNTY. This was an action commenced by the plaintiff against James Stronach, Augustus D. Bonesteel, John N. Bonesteel, and the appellant, Sarah Stronach, as the wife of James, to foreclose a mortgage made by James and Sarah Stronach to secure the payment of a bond made by James for $900, and interest, $S7 40 The summons was personally served upon James, April 28, 1858.

This action was commenced by a bill in chancery, before the adoption of the code, for an account among partners, and to dissolve the partnership.

<p>APPEAL PROM CIRCUIT COURT, GREEN COUNTY.</p> <p>The facts of this case are sufficiently stated in the opinion of the court.</p>

This was an action in chancery, commenced before the adoption of the code, but tried and judgment rendered after-wards. The appellant supposing that the appeal was to be perfected according to the law as it stood when the action was commenced, applied to the circuit court and obtained an order fixing the amount of the bond on.appeal at $200.

This case was before this court, 7 Wis. Rep., 296, upon an appeal from an order dismissing a petition for the reduction of alimony granted in a divorce case; where it was decided that the order of dismissal be reversed, and the cause was remanded for further proceedings. The facts of the case are there sufficiently stated for an understanding of the present appeal and motions.

This action was commenced against Bade and his wife, as mortgagors, and a large number of others, as subsequent incumbrancers. After judgment Bade appealed to this court. The facts are state fully by the chief justice in his opinion.