Mowry v. First Nat. Bank of Baraboo

Citation66 Wis. 539,29 N.W. 559
PartiesMOWRY, ASSIGNEE, v. FIRST NAT. BANK OF BARABOO AND OTHERS.
Decision Date12 October 1886
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from circuit court, Sauk county.

The opinion states the facts.

Pinney & Sanborn, for plaintiff and appellant.

J. W. Lusk, for defendants and respondents.

TAYLOR, J.

The appellant, as assignee of the Wonewoc Manufacturing Company, brought this action against the respondents and others to compel them to account for the value of certain goods and chattels which were mortgaged by said company to the said national bank, and also to the Reedsburg Bank, and for the value of certain choses in action, which were also pledged by the manufacturing company to secure the payment of money loaned by said banks to said company. The evidence shows that the mortgagees took possession of the property mortgaged, and sold, or otherwise disposed of, the same, but have done so in such manner as not to foreclose the equity of redemption of such assignee, as the representative of the company; and it further appears that the mortgaged property has been so disposed of and mixed up with other property that it is impossible for the mortgagees to return the same to the plaintiff, should he pay the debts secured by the mortgages. It was held, therefore, by the circuit court, that the mortgagees, and their grantees or vendees, should account to the plaintiff for the value of the property described in the mortgages, which was taken possession of and sold by the defendants; such value to be ascertained at the time they undertook to sell such property under their mortgages.

The case was tried at the circuit, and findings made and judgment rendered in 1881. From the judgment so rendered in 1881 the plaintiff appealed to this court. The decision of this court upon that appeal will be found in 54 Wis. 38-49;11 N. W. Rep. 247. The judgment rendered by the circuit court from which that appeal was taken is set out at length in the opinion on that appeal. Pages 43-45. It will be seen that the circuit court adjudged on the trial of this case-- First, that the equity of redemption of the plaintiff in the mortgaged property had not been foreclosed, and “that the defendants are liable to account for the value of the property covered by the mortgages, and of which they took possession February 7, 1880, at the time they so took possession of the same, deducting therefrom the indebtedness due on both said mortgages; that the sale of March 6, 1880, amounted only to a sale of the mortgage interest of the mortgagees named in said findings, in the property covered by their mortgages, and not a foreclosure of either of them; that no sale was made, or attempted to be made, on the mortgage of the First National Bank of Baraboo, and that none was effected on the separate property covered by the other mortgage.” It was further adjudged “that the defendants, the First National Bank of Baraboo, Nathan Fisk, Reuben Fisk, and Mary E. Gale Sage, account to said plaintiff for the sum of $1,886.38, collected on said collaterals mentioned and described in said Exhibit B, and for the sum of $4,250 realized from the sale of such as were sold June 20, 1880, to P. R. Briggs, and that such sale was valid and rightfully made, and extinguished the right, title, and interest of said plaintiff in and to the collaterals so sold.”

The next part of the judgment relates to the collaterals which were pledged to the Reedsburg Bank to secure the payment of $7,000, which are no longer in the case; as, by agreement of the parties, the Reedsburg Bank has accepted these collaterals in full payment of the debt for which they were pledged as security. It was further adjudged “that it be, and hereby is, referred to J. M. Morrow, Esq., of Sparta, Wisconsin, as sole referee, to ascertain and report-- First. The value of the property covered by said chattel mortgages, and each of them, on February 7, 1880, and on March 6, 1880, to the end that the same may be more definitely and fully ascertained, and also the value at the said times of the collaterals mentioned and described in said Exhibits A and B, to be stated separately. Second. What sum or sums were collected or realized from the sale of property by Nathan Fisk, while he was acting as such agent as aforesaid, and the expenses of sale and collection. Third. What amount was due the defendants, constituting the banking partnership called the Reedsburg Bank, for principal sum and interest, February 7, 1880, and also on March 6, 1880, on their said chattel mortgages; and also what amount was due to the First National Bank of Baraboo for principal and interest on the seventh day of February, 1880, and also on the sixth day of March, 1880, on the debt secured by its chattel mortgage, and for which the collaterals mentioned in said Exhibit B were deposited as collateral security. Fourth. What amount was due to each of them, on each of said days above mentioned, for principal and interest on the notes for which the collaterals mentioned in Exhibit A were pledged as security, and what amount they have collected on such collaterals since February 7, 1880. Fifth. Which of the collaterals mentioned in Exhibit B remained on hand uncollected on June 29, 1880, and were sold as stated in said finding of facts to P. R. Briggs, and the value thereof. And that, upon the coming in of said referee's report, final judgment be rendered thereon according to law, and that all other questions be reserved until the coming in of said report.”

On the former appeal this court affirmed the judgment of the circuit court as to all matters adjudicated by said court, except that part thereof which declared “that the sale of the collaterals mentioned in Exhibit B, for the sum of $4,250, to P. R. Briggs, was valid and rightfully made, and extinguished the right, title, and interest of said plaintiffs in and to said collaterals so sold.” This court said, upon that subject: “If it should appear in the accounting that the property mortgaged to the Baraboo Bank was, when seized, of a value equal to the debt which it was given to secure, the debt was thereby paid, and the collaterals pledged to secure the same debts belonged to the plaintiff, and should have been delivered to him. In that case the bank ceased to have any lien upon the collaterals, and had no right or authority whatever to sell them.” The court also said “that if it turned out, upon an accounting for the value of the mortgaged property, that any portion of the mortgage debt remained unpaid when such collaterals were sold, then the sale was properly made, and it would result that the sale was valid and binding upon the plaintiff, and he could only be allowed in the accounting the sum for which the collaterals were sold.” It is further said in that case “that it does not seem to be questioned that, in any event, Briggs took a good title to the collaterals purchased by him. We are inclined to think that he did. The plaintiff seems to be satisfied to pursue his remedy against the defendants, who disposed of the collaterals, and who are doubtless abundantly responsible for any judgment that may be recovered against them.”

After the said judgment was affirmed in all respects, except as above stated, the case was sent back, and an account was taken by the referee as required by said judgment, and by the account so stated it appears that the debt of the Baraboo Bank was not entirely satisfied by the seizure and sale of the property covered by the chattel mortgages; and so, according to the decision, made both by the circuit court and this court, the sale of the collaterals made to P. R. Briggs was a valid sale in all respects, and the only relief the plaintiff has is to compel the defendants to account for the money received on such sale, viz., the $4,250.

The referee to whom it was referred by the judgment aforesaid to take the evidence, and report as to the different matters stated in said judgment, took the evidence, and reported to the court as follows: (1) That the value of the property covered by both of said chattel mortgages, on February 7, 1880, and March 6, 1880, was $12,780; and that he did not find the value of the property covered by each mortgage separately, because, under the testimony offered, it was impossible to do so, and the property was so intermingled that, in his judgment, it was impossible to do so. (2) That he does not find the value of the collaterals mentioned in exhibit A, being those pledged to the Reedsburg Bank, because, by consent of all parties, they were withdrawn from consideration, having been amicably disposed of. (3) That the value of the collaterals pledged to the First National Bank of Baraboo, and described in Exhibit B, was on the sixth day of March, 1880, $6,136.88; and that the value of said collaterals sold on the twenty-ninth of June, 1880, was $4,250. (4) That Nathan Fisk, as agent for the parties, had received no more from the sales of property made by him than the expenses incurred by him as such agent. (5) That there was due the Reedsburg Bank, for the debt secured by its chattel mortgage, on March 6, 1880, $5,835.90. (6) That there was due to the First National Bank of Baraboo, on the debt secured by its chattel mortgage, and for which the collaterals mentioned in Exhibit B were also pledged, $9,833.19. (7) That between the sixth of March, 1880, and the twenty-ninth of June, 1880, there had been collected, on the Baraboo collaterals, $1,886.88.

The referee accompanies his report with the following statement of the account between the parties, as found by him, viz.:

+-----------------------------------------------------------------------------+
                ¦Amount of mortgage debts to both banks, March 6, 1880,              ¦$15,669 ¦
                ¦                                                                    ¦09
...

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7 cases
  • Ean v. Chi., M. & St. P. Ry. Co.
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    • United States State Supreme Court of Wisconsin
    • 30 Septiembre 1898
    ...the judgment is affirmed. Reed v. Jones, 8 Wis. 421.” Wells v. Express Co., 55 Wis. 23, 11 N. W. 537, and 12 N. W. 441, and Mowry v. Bank, 66 Wis. 539, 29 N. W. 559, are to the effect that a judgment of affirmance is res adjudicata, and cannot be disturbed by the court below. The legal effe......
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    ...This left nothing for the trial court to do in the case except to enter judgment therein as directed. Rev. St. § 3071; Mowry v. Bank, 66 Wis. 539, 29 N. W. 559;Jones v. Jones, 71 Wis. 513, 38 N. W. 88;Whitney v. Traynor, 76 Wis. 628, 45 N. W. 530;Chouteau v. Allen, 74 Mo. 56;Stump v. Hornba......
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    ...a final determination of the rights of the parties in the actions. Rev. St. § 2882. In Mowry v. Bank, 54 Wis. 38, 11 N. W. 247, and 66 Wis. 539, 29 N. W. 559, there were two judgments. The first determined the rights of the parties, but provided for a reference to carry out what had been so......
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    • United States State Supreme Court of Wisconsin
    • 3 Octubre 1905
    ...in equity be awarded him. Spengler v. Hahn, 95 Wis. 472, 70 N. W. 466;Menz v. Beebe, 102 Wis. 342, 78 N. W. 601;Mowry v. First National Bank of Baraboo, 66 Wis. 539, 29 N. W. 559;Avery v. Wilson (C. C.) 20 Fed. 856; Cyc. vol. 11, subd. “b,” p. 32; Noland v. Pope, 7 J. J. Marsh. (Ky.) 137. U......
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