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WISCON SIN
1E~AI
NEWS.
VOL. IV. THURSDAY MORNING, SEPTEMBER 29, 1881. No. 1.
The Weekly Wisconsinl 1891Nons
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Entered at the Postollice at Milwaukee, Wis.,
as second class matter
VOLUME IV.
With this number we commence Vol. IV.
of the LEGAL NEWs. This is a few days
ahead of time, but we commence earlier, in
order to keep the decisions of the Supreme
Court for the August term in one volume.
SUPREME COURT OF WISCONSIN.
Abstract of Opinions filed Sept. 27, 1881.
[Special Mail Dispatch to Daily Legal News.]
MADISON, Sept. 27, 1881, 10 A. M.
To enforce lien on logs-Demurrer- Union of several
causes of action.
Where a laborer performs services on the same
logs for different persons, and demands a sepa-
rate personal judgment agamnst each for the
amount due on each contract, as well as a gener-
al judgment that the whole amount be adjudged
a lien onl the logs; Held, that such laborer can
have an action to enforce his entire lien, making
the persons for whom he worked, parties. The
lien is not divisible so that the amount due on
each employment would constitute a distinct lien
to be enforced by itself, but under the employ-
ments stated in the complaint is an entirety, and
there is no misjoinder of causes of action.
Order affirmed. Cole, C. J.
Rogers et al. vs. Burns et al., Impl'd,
etc.
In accordance with the rule that in a case of
doubt, and in the absence of testimony explana-
tory of the circumstances under which the agree-
ment was made, the rule was well settled that the
contract should be treated as a chattel mortgage
rather than as a conditional sale; Held, that the
relation existing between Burns and wife and
Mrs. Goodrich at the time of her death was a
mortgage relation; and the plaintiffs were entitled
to judgment of foreclosure and sale of the prop-
erty.
Judgment reversed. Cole, C. J.
State ex rel Brown Co. vs. Myers,
Circuit Judge, etc.
Ch. 291, Laws 1880, is a valid enactment. Its
object is to secure greater uniformity and equal-
ity in tile valuation of the taxable property as
between the cities and towns of the county, and
it does not in any way unwarrantably invade the
power of the county board, or interfere with the
right of local self-government. Nor is the act
invalid because the commissioners are appointed
by the circuit judge instead of being chosen by
the. electors. Such commissioners are not offi-
cers within the meaning of the constitution.
Nor is the case invalid because giving the com-
missioners power to review and equalize the val-
uations of real estate as fixed by thO county
board. Nor is it invalid because retroactive so
far as reviewing the decision of the county board
in 1879 is concerned.
Motion to quash writs of certiorari prevails.
Cole, C. J.
Clarke vs. County of Milwaukee.
Ch. 179, Laws of 1861, propria vigore made two
school superintendent districts corresponding to
the senate districts, in the county of Milwaukee.
The apportionment act of 1866, adding the town
of Wauwatosa to the fifth senate district, had the
effect to change by implication, superintendent
district No. 2, so as to include that town. Ch.
342, laws 1874, abandoned the policy of making
superintendent districts, in all cases, correspond
to senate districts, and, doubtless, contemplated
that county boards would proceed by resolution
to divide their respective counties into superin-
tendent districts, specifying the territory in each.
No action was taken in Milwaukee county, but
the districts previously existing were treated in
all respects as continuing. This recognition and
practical adoption of the districts as they had
theretofore been formed, must be attended with
the same legal consequences as though the board
had actually made such a division of the county
under the law of 1874. The plaintiff, chosen sup-
erintendent of district No. 2, was entitled to the
salary which the law gave to that officer during
his term. The county board could not fix a less
salary than the minimum provided for inch. 177
laws 1869.
The inmates of the National Soldiers' Home
and of the county poor-house and insane hospi-
tal were properly included in tle enumerationof
the inhabitants of the district; and the district
contaifning with them more than 10,000 persons,
the plaintiff was entitled to at least 8800 per year.
Plaintiff having received but $500 per year. and
having receipted for that suim, is not thereby es-
topped to claim the balance of the salary given
by law.
Judgment affirmed. Cole, C. J.
Weis vs. Schoerner and wife.
Mortgage foreclosure-Note-Service of Summons.
Because of omission of affidavit of service of
summons upon defendant to state the place of
service (R. S. sec. 2612) the circuit court had
no jurisdiction to render judgment by default
against the defendants. Claimed, oi behalf of
plaintiffs, that in certain proceedings takes on
behalf of defendants, after a sale of the niort-
gaged premises pursuant to the judgment, tostay
proceedings on a writ of assistance, the de-
feidants appeared generally in the action and
thus waived the delect in the affidavit of service.
Hield, that this appeal from the judgment does
not bring up for review the proceedings subse-
quent to judgment. Such proceedings can
only be reviewed on an appeal from the order
made therein.
Judgment reversed. Lyon, J.
State ex rel. Sloan vs. Warner,
Sec. of State.
Mandamus-Auditino af ;laim5h- al omission in
Mandamsus to compel the Secretary of State to
audit and prove the relator's claim, specified in
Sloan v. State, 51 Wis. 623. and to draw his war-
rant on the state treasurer therfor, payable out of
the trespass fund in the treasury, or to show
cause to the contrary. Held, that the omission to
aver in the petition that there Is money in the
treasury belonging to that fund is fatal to the
proceeding. -
Motion to quash alternative writ granted, un-
less relators supply defect in petition by amend-
ment. Lyon, J.
Brown vs. Brown.
Power of court to vacate its judgment or order.
During the term at which a judgment or order
is entered, the court may modify or vacate the
same, oin its own motion. The rule applies to an
action for divorce.
Order affirmed. Lyon, J.
Clapp vs. Webb.
Oral promise to pay debt of another-Statute oj
frauds.
An oral promise by one to pay the debt of
another, is not taken out of the statute of frauds
by the mere fact that some benefit may result in-
cidentally therefrom to the promissor. It must
appear affirmatively that such benefit was the
object of the promise, and the consideration
therefor, or the promise is within the statute and
void.
Judgment reversed. Lyon, J.
State ex rel Cornish vs. S. H. Tuttle.
Quo warranto- loid provision in charter of White-
water-
1. A provision in the charter of Whitewater
restricting the right to vote at municipal elec-
tions to electors who have resided in the village
twenty days next preceedng the election, is in
contravention of sec. 9, art. XIII, of the con-
stitution, and is therefor void.
2. The remaining portions of the charter con-
tain all necessary provisions for organizing the
municipal government and carrying it on, and
are valid. The void provision was not the com-
pensation for or inducement to the enactment
of the valid portions. Hence, the valid portions
may stand, although the charter contains the
invalid provision.
3. The objection that the plaintiff has not
legal capacity to sue, is not raised by a general
demurrer.
Order affirmed. Lyon, J.
Smith vs. City of Janesville.
Tax Certificates.-Applicability of See. 3205, R. S.
1. Sec. 3205 R. S. is not applicable in an ac-
tion by or against a municipal corporation of
this state created by the legislature, of the exist-
enee of which the courts of the State take judic-
ial notice. It seems that the section is only
applicable to private corporations.
2. Under R. S. Sec. 4976, held that the limita- ithe plaintiff seekstorecover damages in such
tion prescribed by ch. 144, laws of 1874, controls action according to the rule laid down in sec.
in this action, notwithstanding the repeal of that 4269 R. 8., 1878, he must show by his proofs that
chapter. the defendant comes within the provisions of said
Order affirmed. Lyon, J. section either by proving that he was the original
Davis vs Town of Fulton. trespasser, or a purchaser or other person claim-
Ing under him wills notice of the trespass.
Damages for Injury-Defective strcet-Rejection of Judgment reversed. Taylor, J.
evidence.
The rejection of evidence, tending to prove a Neubrandt vs. State of Wisconsin.
material fact, which fact is afterwards proved by Burglary-Proof of special intent-Eidence-Pos-
the party offering such evidence by other vitnes- so-sios of personal property.
ses without objection, when such fact is clearly
establtslhed by such other witnesses ons the other tha the d ndait broke a red th dwe-
side, is not an error for which the judgment hug he fJon becke n the t e,
should be reversed.lighueoJonBctlntengttm,
Judgment affirmed. with intent to steal the goods aJi. chattels of the
Judgent ffired. aylo, ~said John Bechltel then and there being, it is nec-
Wilcox v. Matteson. essary that the state should prove such special
latent in order to justify a conviction of the de-
Action on promissory note-Attempted transfer of fendant.
personal property by gift. The evidence on the trial of this case showed
Thethat some one broke and entered the house of
before his death, told the nurse who was attend- John Bechtel in the night time, as charged 'n
befre sisdeah, oldthenure wso as tted-the information; and it also showed that an over-
tug him to take his pocket book,which was then
in the bed on whichhe was lyng and under his t and two boxes of cigars of John Bechtel, an
shoulder, and give it to his wife when she came; overcoat, pair of boots atd pair of gloves owned
that there was money and papers in it that would by a boarder in the house of Bechtel, and a cap
be of value to her, as she would want them. The belonging to his ion, were stolen at tie same
pdcket book was not shown to the nurse or in time the burglarious entry was made, and that at
any way removed Irom its place in the bed un- le time they were stoles, they were all in the
der the shoulder of the deceased until several bar-roon or saloon, in said dwellng souse.
hours after his dea4i. Held, that the title to the The evideice also showed that the defendant,
pocket book and its contents did not pass to tse Shortly after the burglary was committed, was
plaintiff as a perfect gift, but remained i the fond in possession oh tse overcoat of the board-
deceased at the time of his death. er and the cap of tue son, and under such cir-
In an acti i brought upon the prommissory cumsauces as tended to prove that lie was guilty
noteby te wioirwhic sea in is oke of the burglary, Hield, that tlts evidence teisded
note by the widow, which was fin the pocket
book of her deceased husband at the time of his prove the special iutent charged in the in.
death, she cannot recover on the ground that the ormation, a lid it was not error to submit this
note belonged to her as a part of the $200, which question of iiteiit to steal the property of John
she is entitled to select from her husband's es- Bechtel to the jury ipoi tse evidence in the
tate under the provisions of Sec. 3035 R, S. 1878, case.
without giving evidence showing that she had
selected the same as a part of said $200 allowed ill tie bar-room of John Bechtel, and Snel
toed boarder sleeping at the te in another room in
Judgment y said a i the house, iis overcoat was in the possession of
Judgent evered. aylo, JJohn Bechtel, a11( that suds possession would
Tucker vs. Grover. support a charge i5 the information that John
Tucker Bechtel ownied sucs overcoat, iiider the provis-
Change of renue-Jurisdiction of ce, -_Motion to ions of sec. 4621 R. S. 1878, and so proof of stealing
strike from calendar. sul overcoat would support the allegation of the
Tise decision in the cases of Woo ard v. Han- iuteit tosf-stl,' propecty of Bechtel.
fr12-r~ Ilallrhe~ ller9 j u,, * ignlent alirmn-s Taylor, J. ,-,
r m the Milwaukee county circuit court to
Dodge county by the demand of the defendant ary et al.
and the written consent of the plaitiff 's attor-
ney, in pursuance of such demand, in the man- Res adjidicata-Complaipl il Equity-Ctiton of
ner and within the time prescribed by sec. 2621 forfeilue.
R. S. 1878, and the plaintiff having afterwards The judgment of this cuirt in this case, re-
noticed the action for trial in the Milwaukee ported in 47 Wis., 354. is res sdjuicatlr of this ap-
county circuit court and placed the same on the peal. A complaint in equit for the purpose of
trial calendar of such county, a motion on the having isserted in an absoluteteed a conditioi
partof the defendant in the circuit court for Mil- offorfeiture and of haviig sh forfeiture de-
wauskee county to strike such action from said dared and enforced will he treated 2 a com-
calendar on the ground that such court had no plaint to enforce a forfeiture and the court Ti
authority to try the same, should have been not entertain it, or grailt ay part of the relief
granted; and atn order of said court refusing to asked.
grant such motion is an appealable order, Tie part of the judgment appealed fron is af-
Order reversed. Taylor, J. firmed. Orton, J.
National Bank of Delavan vs. Cotton,
429 R.' 17 Che ms s by. Adm'r, etc.
e d dJoint idobtedess by coutnct-Pye-sitnte of
egligtnce-Dahaagestfor fatal injery. lintilatioes.
This court cannot declare of a qettreion of law, Where two persons are jointly indebted by con-
thlat time mere fact that a railroad copn e-tract and one makes a juidgment thereon by all
mits its cars to run upon the traperi understanding ad aree th the other, it
its private is a payment bythe othayo dI
yards unattended by a brakeman or other person and Stops the ronnifg Wfstatuteofimitation
to control their speed, is such negligence as of to both.
would entitle one of its employees to recover for ers.
an injury to his person reslting o the fact oft r r ,
the ears being so unattended. Bandlow vs. Thiene, imp'ld, etc.
An eigphoye of a railroad cotipany who enters
its service knowing the manner of doing the Crtiorari-Irreglar jdgaent- Waite - Destuc-
business in which he is employed, or who re- lion-Character of Destruction
mains in its service after he has full knowledge Oit certiorari, the only proper judgment is to
of the manner it which such bnsiness is done, quas the writ or to reverie or affir, in whole
casnot recover for a personal injury resustiig or bi part.
from such method of doing business., The inju- An orditary jndgment at law inform, against
rtes likely to result from such method, is one of the defendant in error, for the damages and costs,
the risks of iais employment. is irregular.
The jury at the request of ths defendant having Waste is where any spoil or destruction is
returnbed a special verdict, and such special made of houses, lands, woods, etc., by tenants to
verdict failing to find as a matter of fact that the the damage of the heirs or heirs in reversion or
defendants' negligence caused thle itjury com- remainder, or when there is material destruaiat
plained of, this conrt cannot infer inch negli- or alterahion of any part of the tenement by a ten-
gence from the fact found, that the injury was ant, to the injury ofthe person entitled to the in-
censed by tile collision of two cars whichs were ileritance, and waste and destriuction are COnV$$h-
permitted to rnnoon the tracks of said railroad d le terms.
in its private yard, unattended by a brakeman. In such ease the damage must be perment
Judgment asirmed. Taylor, J. and lasting and of cousg rable amount. The
placing of filthy and offensive matter upon the
Tuttle, Trustee, etc., vs. Wilson. walls, windows, and under tte sink of a dwelling
by a tenant, wilfully and maliciously, with ill-
Trespass-Tisber-Role of damages. will towards the landlord or reversioner, and
In an action to recover the value of logs or tim- with intent to injure him is not strictly waste,
ber cut from the plaintiff's land by trespassers, but ass injury to real property less than, and f-
brought against any other person than the tres-i
passers or some one purchasing from them with diction, under subdivision 7, see 3572, R. S. It
notice ofthe trespass, the plaintiff cannot recover is intimated merely that a justice has no jurisdic-
as damages the valne of the logs at the time they tion in an action in the case for waste proper,
were converted by the defendant. His damages Whether a general denial puts in issue the al-
are limited to the viaJe of the property on the legation of title in the plaintiff to th si wul.
supporttmade in the complaint, is not decided, bt hed,
proved by the labor and skillof the trespasser and that if it does, the question is waived by the fail-
those claimng under him. In such case the Bc of the defendant to give bond according to
rule of damages as laid down in the case of se 3620, R. S., and the justice may proceed witho
Single vs. Schneider, 30 Wis., 570, and oeeyrucoth w d the trial.
B. R. Co., 17 Wins., 589, applies. Judgment reversed. Orton, J.](ViewImageLocal?handle=hein.journals/wilegn4&div=1&collection=&method=preview&ext=.png&size=3)
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