Chapman v. Sutton

• Decision Date: 12 April 1887
• Citation: Chapman v. Sutton, 68 Wis. 657, 32 N. W. 683 (Wis. 1887)
• Parties: CHAPMAN v. SUTTON.
• Court: Wisconsin Supreme Court

68 Wis. 657

32 N.W. 683

CHAPMAN

v.SUTTON.

Supreme Court of Wisconsin.

April 12, 1887.

Appellant, John J. Sutton, brought suit against the respondent, Almeron Chapman, and recovered judgment for $177.01, from which judgment Chapman appealed, without executing a supersedeas bond. Sutton issued execution, which was returned unsatisfied. Pending the appeal one Roberts obtained judgment against Chapman for $154.34, and she and Sutton joined in bringing a creditors' bill against Chapman, one John Hasey, and William R. Taylor, and obtained an injunction restraining Chapman from disposing of his property. Chapman was willing to pay the Roberts judgment, and being advised that he might also pay the Sutton judgment without prejudice to his appeal in the action in which it was rendered, he, upon this understanding, requested Hasey to pay both judgments, and have the creditors' bill dismissed. Sutton claimed that this payment by Hasey was intended as a settlement of the appealed action, and accordingly he moved to dismiss the appeal in that case; but the court overruled the motion, and, upon the hearing, rendered judgment in his favor for $60 only. Chapman thereupon brought this suit to recover back the difference between the $60 and the amount which he had paid through Hasey. The trial resulted in a finding and judgment for Chapman, from which Sutton appeals. The tender of payment by Hasey was in the following words:

“CIRCUIT COURT, JEFFERSON COUNTY.

John J. Sutton and Mary J. Roberts, Plaintiffs, against Almeron Chapman, John Hasey, and W. R. Taylor, Defendants.

The defendant John Hasey hereby tenders to you, the plaintiffs in the above-entitled action, the sum of $367.64, the same being the full amount claimed by you to be due to the plaintiffs for damages, with interest thereon up to day; also the sum of $25 as costs. And defendant Hasey hereby tenders and offers to pay the balance of the plaintiffs' costs, if more is claimed, as soon as the amount of the same can be determined. And, for the purpose of having the amount thereof settled and determined, the defendant John Hasey demands a bill of the plaintiffs' costs, and the defendant Hasey hereby offers to appear before the clerk of this court, at his office in the city of Jefferson, in Jefferson county, at any time, on due and sufficient notice, to enable the defendant Hasey to get to the office of said clerk for the purpose of having the plaintiffs' costs taxed and determined.

+----------------------------+
                ¦Yours, etc.,¦E. V. BRIESEN, ¦
                +----------------------------+
                

Attorney for Defendant Hasey.

To J. C. McKenney, Attorney for Plaintiffs, Mil., Wis.”

To which tender was annexed the following statement and receipt, to-wit:

“STATEMENT OF PLAINTIFFS' CLAIM.

+-------------------------------------------------+
                ¦First, J. J. Sutton.               ¦     ¦       ¦
                +-----------------------------------------+-------¦
                ¦Judgment against A. Chapman,             ¦$177 01¦
                +-----------------------------------------+-------¦
                ¦With interest since May 18, 1883,        ¦10 37  ¦
                +-----------------------------------------+-------¦
                ¦Sub-costs,                         ¦$8 25¦       ¦
                +-----------------------------------+-----+-------¦
                ¦Interest on same since August 21st,¦35   ¦8 60   ¦
                +-----------------------------------+-----+-------¦
                ¦                                   ¦     ¦$196 98¦
                +-------------------------------------------------+
                

+-----------------------------------------------------+
                ¦Second, M. J. Roberts.               ¦       ¦       ¦
                +---------------------------------------------+-------¦
                ¦Judgment vs.   A. Chapman,                   ¦$154 34¦
                +---------------------------------------------+-------¦
                ¦With interest since May 17, 1883, up to date,¦9 50   ¦
                +---------------------------------------------+-------¦
                ¦Sub-costs,                           ¦$7 00  ¦       ¦
                +-------------------------------------+-------+-------¦
                ¦Interest,                            ¦31     ¦7 31   ¦
                +-------------------------------------+-------+-------¦
                ¦                                     ¦       ¦$171 16¦
                +---------------------------------------------+-------¦
                ¦Total claim,                                 ¦$367 64¦
                +---------------------------------------------+-------¦
                ¦Costs,                                       ¦25 00  ¦
                +---------------------------------------------+-------¦
                ¦Total tendered,                              ¦$392 64¦
                +-----------------------------------------------------+
                

E. V. BRIESEN,

Attorney for Defendant Hasey.

+----------------------------------------+
                ¦$392.64.¦MILWAUKEE, WIS., April 4, 1884.¦
                +----------------------------------------+
                

Received of John Hasey, Esq., the sum of $392.64, as above stated.

J. C. MCKENNEY,

Attorney for Plaintiffs.”

ORTON, J., dissents.

P. G. Stroud, for respondent.

John J. Sutton, in pro. per., for appellant.

COLE, C. J.

The contention of the appellant is that the evidence clearly shows that when Hasey, one of the defendants in the creditors' suit pending in Jefferson county, made the tender and payment of the two judgments and costs in that suit, that this was understood and intended to include the action of Sutton v. Chapman, pending on appeal in Columbia county. There is...