Jewett v. Fink

• Citation: 2 N.W. 1124,47 Wis. 446
• Parties: JEWETT v. FINK and another. (Cross Appeals.)
• Decision Date: 06 November 1879
• Court: United States State Supreme Court of Wisconsin

2 N.W. 1124

47 Wis. 446

JEWETT v. FINK and another. (Cross Appeals.)

Supreme Court of Wisconsin

November 6, 1879

APPEALS from the Circuit Court for Kenosha County.

The case is thus stated by Mr. Justice COLE:

"These are cross appeals from the same judgment. The action is trespass de bonis, etc., the subject matter of the controversy being a horse. The complaint consists of two counts. In the first, the plaintiff claims the property by virtue of a chattel mortgage given by the owner, one Price purporting by its terms to secure the payment of $ 825.38 in six months thereafter, and authorizing the plaintiff to take possession of the horse at any time and sell the same, and out of the proceeds of such sale to satisfy said debt, and the expenses of sale and of keeping the horse. The plaintiff took and held possession of the property for more than two years and a half, when it was taken from his possession by the defendants. It is averred in the complaint that the horse was exempt from sale upon execution. In the other count the plaintiff claimed a lien upon the horse as stable-keeper under the statute.

"The answer sets up that the defendants are respectively United States marshal and his deputy, and justifies the taking of the property under a fi. fa. issued out of the United States circuit court, wherein one Dow was plaintiff, and Price, the mortgagor, defendant; and alleges that the chattel mortgage under which plaintiff claims, was made with the intent to defraud and delay creditors, etc.

"On the trial of the cause, evidence was given, against the plaintiff's objection, which strongly tended to prove that the chattel mortgage was without consideration; that no indebtedness whatever existed on the part of Price to the plaintiff when it was given; that it was not intended to secure either a present or future indebtedness, but, as Price was expecting to remove from Wisconsin to Chicago, the mortgage was executed, under the advice of his attorney solely for the purpose of placing the horse beyond the reach of Price's creditors. And it may be stated here that the answer shows, and indeed the fact is not controverted, that Price did not remove to Chicago as he intended doing, but has continued to be a resident of the city of Kenosha.

"The jury found a special verdict upon questions submitted by the court. They found that the mortgage was not given to secure an indebtedness then due or to become due from Price to the plaintiff, but was executed with the fraudulent design or intent, on the part of both mortgagor and mortgagee, to hinder and delay the creditors of Price. They further found that nothing was due the plaintiff upon the mortgage for either principal or interest; also that Price, when he gave the mortgage, did not own any ox or oxen, mule or mules; thus, in effect, finding that the horse at that time was exempt.

"The plaintiff moved for judgment on such verdict, for the amount due by the terms of the mortgage and interest, which motion was denied. Judgment was then entered that as to the first cause of action the plaintiff take nothing; that as to the second, he recover $ 469 as damages, and costs. The plaintiff appeals because the court refused to give judgment on the verdict for the full amount of damages claimed by him. The defendants appeal because he had judgment for the expense of keeping the horse."

Judgment affirmed.

The appeal was submitted on the brief of J. V. & C. Quarles for the plaintiff, and briefs of J. M. Stebbins and S. K. Dow for the defendants.

For the plaintiff it was argued, inter alia, 1. That the affidavit filed with the warrant of attorney was insufficient (Thompson v. Hintgen, 11 Wis., 112); that the agent making such an affidavit must know the facts, and must disclose his means of knowledge (McCabe v. Sumner, 40 Wis., 386, 391), and must state the latter as fully as on verification of a complaint (Crane v. Wiley, 14 Wis., 658); that the affidavit does not show what part of the alleged facts rested on the "admissions of the defendant;" that the statements of the plaintiff to the affiant were not a legal means of knowledge; that the possession of the prior note, whose surrender is asserted to be the consideration of the note in question, would not support any inference, unless it were that the former note was still unpaid; and an existing obligation; that there is no averment in the affidavit that any sum is due on the note in suit, but only that the affiant is so informed by the plaintiff, and believes it to be true; that the affidavit should show the consideration (3 Wait's Pr., 687, and cases), which is not shown here, because it nowhere appears that the prior note was extinguished; and that the insufficiency of the affidavit may be taken advantage of in a collateral action. Nichols v. Kribs, 10 Wis., 76. 2. That the pretended judgment on warrant of attorney was void because signed only by the clerk, and not by "a judge or court commissioner" as required by Tay. Stats., 1652, § 16Freeman on Judgm., § 547; Chapin v. Thompson, 20 Cal., 681; Remington v. Cummings, 5 Wis., 138, 142; Fairchild v. Dean, 15 id., 206; Wadsworth v. Willard, 22 id., 238. A federal court cannot by any practice make that a judgment which is null by state laws. But the national courts are obliged to follow the state practice. R. S. U.S. § 914. Besides, the right of every citizen to have his day in court, and to be brought in by process, cannot be taken away except in the manner pointed out by statute. Ins. Co. v. Brine, 10 Ch. Leg. News, 283. 3. That the mortgage was valid as between the parties to it, even if given with fraudulent intent. Clemens v. Clemens, 28 Wis., 637, 646. It was error, therefore, to admit evidence on the part of defendants for the purpose of showing fraud in the mortgage, before they had shown themselves to be creditors. Jones v. Lake, 2 Wis., 210; Eaton v. White, id., 292; Norton v. Kearney, 10 id., 443, 452; Bogert v. Phelps, 14 id., 88; Lincoln v. Cross, 11 id., 91; James v. Van Duyn, 45 id., 512; Damon v. Bryant, 2 Pick., 411; Decker v. Bryant, 7 Barb., 182; Pemberton v. Smith, 3 Head, 18. 4. That the property being exempt, the mortgage could not be fraudulent as to creditors. Bond v. Seymour, 2 Pin., 105; Dreutzer v. Bell, 11 Wis., 114; Pike v. Miles, 23 id., 164; Hibben v. Soyer, 33 id., 319; Carhart v. Harshaw, 45 id., 340; Dart v. Woodhouse, 40 Mich., 399. 5. That there was nothing in plaintiff's claim of a lien as stable-keeper in consistent with his claim as mortgagee. Until sale, an interest or equity in the property remained in the mortgagor. Stoddard v. Denison, 38 How. Pr., 296. The mortgagee, in addition to his mortgage lien, may have an equitable lien from another source. Armstrong v. McAlpin, 18 Ohio St., 184. He may secure further advances by a second mortgage; and possession under the first does not militate against the lien of the second. The two liens gave plaintiff a right to hold the horse until both debts were discharged. And if the mortgage was void, the agister's lien would attach of course.

For the defendants it was argued, 1. That as it appeared from plaintiff's own testimony that he had advertised the horse for sale under the mortgage, while, as the jury found, there was nothing due him on the mortgage, this was a conversion, and a forfeiture of the lien claimed; and that the alleged lien for the keeping of the horse was also waived by plaintiff's failure to set it up as the ground of his refusal to deliver the horse upon defendants' demand. Phillips' Mech. Liens, 504-5, 509, 661-2, 667; Vincent v. Conklin, 1 E. D. Smith, 203; Walther v. Wetmore, id., 7; Hanna v. Phelps, 7 Ind., 21; Dows v. Morewood, 10 Barb., 183, 187; Picquet v. McKay, 2 Blackf., 465; Legg v. Willard, 17 Pick., 140. 2. That while state legislatures may direct in what formal way officers of state courts shall conduct their proceedings, they cannot control the forms and modes of proceedings of courts of the United States; that while, under R. S. U.S. § 914, it has been held that U. S. courts will conform, as near as may be, to the practice of the states in which they exercise jurisdiction, there is nothing in this that compels the officers of a federal court to enter up and sign judgments after the exact manner prescribed by the state statutes for the clerks and judges of the state courts; and that in any event the validity of the judgment could not be questioned in a collateral action in another court, to which the defendant in that judgment was not a party. 3. That under the findings of the jury, the mortgage was merely colorable and wholly invalid; and that "when one having exempt chattels abandons or is about to abandon the use of them, on which the exemption rests, and, for the purpose of keeping them out of the reach of his creditors, makes a colorable gift or sale of them for his own use, the fraudulent intent will avoid the sale or gift as against the creditors." Carhart v. Harshaw, 45 Wis., 347.

ORSAMUS COLE, J. EDWARD G. RYAN, C. J., dissented.

OPINION

COLE, J.

The first error assigned on the part of plaintiff for reversing the judgment is, that the court below erroneously admitted the record of the judgment in the case of Dow v. Price, under which defendants justified. The judgment in the United States court was by confession upon what is called a judgment note. It is objected that there was no sufficient statement or...