Houlehan v. Rassler

• Citation: 73 Wis. 557,41 N.W. 720
• Parties: HOULEHAN v. RASSLER.
• Decision Date: 19 February 1889
• Court: United States State Supreme Court of Wisconsin

73 Wis. 557

41 N.W. 720

HOULEHAN

v.RASSLER.

Supreme Court of Wisconsin.

Feb. 19, 1889.

Appeal from circuit court, Lincoln county.

Milo Woodbury, for appellant.

John Van Hecke and A. L. Sanborn, for appellee.

ORTON, J.

This is an action of replevin brought by the plaintiff against the defendant for one black gelding horse and one set of double harness, valued at $140. The defendant was a constable, and levied an execution upon said property issued upon a judgment rendered by a justice of the peace against the plaintiff, in an action brought by J. C. Garland and F. S. Garland against him for $70.34 and costs, and this was the taking complained of in the action. The action was finally tried in the circuit court without a jury, and the court found, in substance, that the said Garlands, under the firm name of J. C. Garland & Son, loaned to the plaintiff, Houlehan, “at his special instance and request, eighty dollars, to be used by said plaintiff in purchasing, and to enable him to purchase, a team of horses and their harness of one J. Murray; and that the said eighty dollars were used by said plaintiff in making said purchase, and were by him paid to said J. Murray as a part of the consideration for said horses and harness.” And the court further found, in substance, that the said judgment in favor of said J. C. Garland & Son, and against said plaintiff, for $70.34, was for the unpaid balance of the indebtedness incurred by making said loan of $80; that said defendant, as constable, levied the execution issued on said judgment on said horse and harness, and that said horse is one of the span of horses, and the harness was the set of double harness, so purchased by the plaintiff of said J. Murray, as aforesaid, and for which said property the said $80 were paid as a part of the consideration; and that at the time of said seizure and levy, and when the action was commenced, the plaintiff was the owner of the said two horses and their said harness only, of which one horse and the harness were so seized and levied upon as aforesaid. On these findings of fact the court found substantially the following conclusions of law: (1) That said action of J. C. Garland & Son against the plaintiff was not brought for the recovery of the whole or any part of the purchase money of the property so seized and levied upon; (2) that said $80 so loaned to the plaintiff by J. C. Garland & Co., and so used by the plaintiff in purchasing said team of horses and said harness as aforesaid, were not a part of the “purchase money” of said property, within the meaning of subdivision 20, § 2982, Rev. St.; and (3) that at the time of said levy and demand said property was exempt from seizure and sale on said execution. On these findings of fact and conclusions of law, and other appropriate findings of fact and conclusions of law, the court rendered judgment for the plaintiff, from which this appeal is taken. It was stipulated that “the exceptions taken to the conclusions of law and order for judgment, duly filed by the defendant, be taken as a part of the record in this action, and stand as and in lieu of a bill of exceptions herein, the same as if the exceptions had been incorporated in a bill of exceptions, duly settled and signed by the judge of the court.”

It is objected by the learned counsel of the respondent that there being no exceptions to the findings of fact, and only a general exception “to each and all of the conclusions of law herein, and to the order of the court in this action,...