Coon v. Seymour

• Decision Date: 27 March 1888
• Citation: 37 N.W. 243,71 Wis. 340
• Parties: COON ET AL. v. SEYMOUR ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 340

37 N.W. 243

COON ET AL.

v.SEYMOUR ET AL.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Eau Claire county.

It appears that July 1, 1864, the plaintiffs herein, A. L. & S. E. Coon, made and delivered to S. L. Shedon & Bro., the payees therein, two promissory notes, one for $100, due February 1, 1865, and one for $60, due January 1, 1866, each with interest at 7 per cent., and accompanied by a warrant of attorney to confess judgment; that July 7, 1868, the said notes having been assigned and transferred to the firm of Seymour, Morgan & Allen, the defendants herein, the said Seymour, Morgan & Allen took and entered up judgment in their favor, and against the said Coons, under and by virtue of such warrants of attorney, in the municipal court of the city and town of Ripon, the same being at the time a court of record in this state, for $235.54 damages and costs; that July 20, 1868, a transcript of said judgment was duly filed and docketed in the office of the clerk of the circuit court for Eau Claire; that November 24, 1883, execution was issued thereon, with leave of the court, to the sheriff of Eau Claire county, who returned the same unsatisfied; that thereupon Seymour, Morgan & Allen, with the purpose of collecting the whole of said judgment, commenced supplementary proceedings against said S. E. Coon before a court commissioner at Eau Claire, in which he was required to appear, and did appear, before the court commissioner, May 31, 1884, and answered, and an issue was made thereon, and that the same was still pending and undetermined when this action was commenced, about July 9, 1884, to set aside and vacate said judgment and to enjoin the collection thereof, and to enjoin said supplementary proceedings. The allegations of the complaint are to the effect that the said Coons had sustained damage to the amount of $275, and the interest thereon, by reason of the breach of warranty on the machinery for which the notes were given, July 1, 1864; that, February 1, 1865, the Coons paid on one of said notes $60, which was not deducted therefrom when the judgment was entered; that in 1869 the said Coons paid to the sheriff, upon an execution issued thereon, $50 in compromise and satisfaction of the judgment. The said Seymour, Morgan & Allen answered, admitting the notes, warrants of attorney, judgment entered thereon, execution, and supplementary proceedings, but in effect denied each of said alleged payments; also denied the alleged compromise, or the authority of the sheriff, or any one, to make such compromise; also denied the making of any such warranty, or any consideration therefor. Issues were submitted to the jury, which found, in effect, that said machinery was warranted, and that said Coons sustained damages, by reason of the breach thereof, in the sum of $190; that $60 was paid on the note February 1, 1865; that $50 was paid to the sheriff upon an execution in his hands, in December, 1869, for which the sheriff gave a receipt in full. The court confirmed such findings, and made others of fact above mentioned and admitted; and as conclusions of law the court found, in effect, that the said Coons were entitled to judgment canceling each of said notes, and releasing them from all liability thereon; and that said Seymour, Morgan & Allen, and each of them, their agents and assigns, be perpetually enjoined from collecting, or attempting to collect, said judgment or any part thereof, and from prosecuting such supplementary proceedings; and that the docketing of the judgment...