Carrier v. Carrier

• Decision Date: 28 February 1888
• Citation: 71 Wis. 111,36 N.W. 626
• Parties: CARRIER v. CARRIER ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 111

36 N.W. 626

CARRIER

v.CARRIER ET AL.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from circuit court, Fond du Lac county; N. S. GILSON, Judge.

Replevin brought by E. B. Carrier against A. B. and S. E. Carrier, to recover 6 horses, 3 colts, 35 cows, 13 two-year olds, 12 yearlings, 19 calves, 2 hogs, 14 pigs, 53 tons of hay, 1 platform wagon, 1 sleigh, 2 lumber wagons, and 2 sets of double harness, all alleged to be the property of the plaintiff, of the value in all of $2,850. The answer denies the plaintiff's ownership of the property, and alleges the same to be the property of one Emily S. Carrier, and that the defendants hold the same as her bailees. No proceedings were had for an immediate delivery of the property, and the same remained in the possession of the defendants until judgment. The trial of the action resulted in a verdict for the plaintiff for 5 horses, 3 colts, 1 platform wagon, 1 double wagon, 2 sets of harness, 14 pigs, and 2 hogs, of the aggregate value of $751. There was no finding in respect to the residue of the property, which consisted of one horse, all of the cows, two-year olds, yearlings, calves, and hay, one lumber wagon, and the sleigh. The verdict is in the form prescribed by the court in case the jury should find the plaintiff entitled to part of the property only. To the instruction in that behalf the plaintiff excepted in due time,--that is to say, before the close of the term at which the action was tried, (Rev. St. § 2869;) and such exception appears in the bill of exceptions. Judgment for the plaintiff was entered pursuant to the verdict. The defendants appeal from the judgment.Kelly & Martin, for appellants.

Duffy & McCrory, for respondent.

LYON, J., ( after stating the facts as above.)

The verdict and judgment leave wholly undetermined the issue made by the pleadings as to the right to the possession of the property not included therein. This is an irregularity fatal to the judgment. No rule is better settled than that the verdict and judgment must dispose of all the issues involved in the action, and the right to the possession of the property not included therein is one of those issues. Ronge v. Dawson, 9 Wis. 246, and numerous cases there cited. It was argued on behalf of the plaintiff that, because the omitted property had not been taken from the possession of the defendants, the omission thereof is immaterial. We cannot concur in this view. In replevin both parties are...