Ditsch v. Finn
| Decision Date | 06 February 1934 |
| Citation | 252 N.W. 562,214 Wis. 305 |
| Parties | DITSCH v. FINN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.
Action by Matthew Ditsch against Fred T. Finn. From a judgment for plaintiff for less than amount prayed for, plaintiff appeals.
Reversed, with directions.
This action was commenced by the plaintiff in justice court on October 5, 1932, to recover from the defendant the amount of an execution theretofore delivered to the latter as the sheriff of Dane county, but which was not returned by him within five days after the return day thereof. The defendant did not appear in the justice court action, but after judgment was rendered against him, appealed to the circuit court for Dane county, where a trial de novo was had before the court and a jury. Against the objection of the plaintiff, the defendant was permitted to prove, in mitigation of the damages claimed, that the judgment debtor mentioned in the execution was wholly insolvent. The jury rendered a verdict in favor of the plaintiff but assessed only nominal damages in the sum of $1. After the coming in of the verdict, the plaintiff moved for judgment notwithstanding the verdict for the amount of the execution, $141.75, together with interest from October 19, 1932, and in the alternative for a new trial. The plaintiff's motions were denied. Judgment in favor of the plaintiff for $1 damages and $38.63 costs was duly entered on July 29, 1933, from which judgment the plaintiff appealed. Such other facts as are necessary to an understanding of this controversy will be stated in the opinion.
John W. Culbertson, of Madison (Anthony E. O'Brien, of Madison, of counsel), for appellant.
Darrell MacIntyre, of Madison (Lester C. Lee, of Madison, of counsel), for respondent.
[1] On May 31, 1932, a justice court judgment was duly rendered in favor of the plaintiff and against one Eldon Fish. Execution on said judgment was duly issued and delivered to the defendant on July 13, 1932. The terms of the execution required that it be returned to the justice of the peace within thirty days. The execution was not so returned and had not been returned up to the time of the trial herein.
The plaintiff's action is based upon section 303.25, which provides: “If an officer neglect to return an execution within five days after the return day thereof or shall neglect to serve the same the party in whose favor the same was issued may maintain an action against such officer, and shall recover therein the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued.”
The plaintiff contends that section 303.25 is clear and unambiguous, and must be enforced according to its terms; that said section clearly provides the amount of the penalty which may be recovered as liquidated damages by an execution creditor from either a sheriff or constable who neglects to return a justice court execution within five days after the return date thereof; and that that section does not permit the sheriff or constable to introduce evidence of the insolvency of the judgment debtor in mitigation of the damages claimed.
The defendant contends that a sheriff, at least, if not a constable, when sued for neglecting to return a justice court execution, may introduce evidence tending to show that the judgment debtor is wholly insolvent, for the purpose of mitigating the damages claimed.
The trial court was of the opinion that upon the trial of an action brought against a sheriff pursuant to section 303.25, such officer may show, in mitigation of the damages claimed, that the judgment debtor was, at the time the execution was delivered to him, and ever since has been, wholly insolvent. The trial court based its opinion upon Crooker v. Melick, 18 Neb. 227, 24 N. W. 689.
Section 303.25, in substantially its present form, is first found in chapter 88 of the Revised Statutes of 1849, which chapter relates to justice courts. That statute provided:
That statute was undoubtedly adopted from the state of New York. See Rev. St. state of New York for the year 1829, part 3, ch. 2, title 4, § 159, vol. 2, p. 253, which provided: “If a constable neglect to return an execution, within five days after the return day thereof, the party in whose favor the same was issued, may maintain an action of debt against such constable, and shall recover therein the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued; and if a judgment be obtained in such suit against the constable, execution shall immediately issue thereon.”
The language of the New York statute is the same as section 210 of chapter 88 of the Revised Statutes of 1849, except that the latter contained the word “officer” instead of “constable” and the additional clause, “or shall neglect to serve the same.”
While in our opinion the language of section 303.25 is so clear and unambiguous as not to permit of a construction except in accordance with its common and approved usage (370.01, Stats.), we may properly consider whether any other construction was given such language by the courts of New York prior to its adoption by this state.
[2][3] It is, of course, elementary that where a statute is adopted from another state, which statute had previously been construed by the courts of that state, it should be given the same construction here. See Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430, and numerous other cases to the same effect cited in Callaghan's Digest under “Statutes,” § 131. It is also elementary that where a statute is adopted from another state before it has been construed by the courts of that state, our courts are free to put their own construction upon it and do not feel bound by any construction subsequently given to it by the courts of the state from which it was adopted. Hogan v. State, 36 Wis. 226.
Both parties to this controversy cite cases decided by the courts of New York at various times subsequent to the adoption of the statute by this state. The best-considered case involving a construction of the New York statute which is similar to ours, but applies only to constables, is Rutzkowski v. George, 92 Hun, 412, 36 N. Y. S. 762, 763, decided December 28, 1895. It was there held that if a constable neglect to return an execution within five days of the return day thereof, he shall be liable to plaintiff for the amount of the execution, not for the damages sustained, and that a constable cannot, in mitigation of a recovery, prove that the execution defendant had no property subject to levy. It was there said: ...
To continue reading
Request your trial
-
State v. Rodgers
...to the adoption of our constitution in 1848, unless we find the construction sound and the reasoning persuasive. Ditsch v. Finn, 214 Wis. 305, 308, 309, 252 N.W. 562 (1934); B.F. Sturtevant Co. v. Industrial Commn, 186 Wis. 10, 17, 202 N.W. 324 (1925); 2A Sands, Sutherland Statutory Constru......
-
Habush v. Cannon
...may be particularly useful because subsection (2)(b) was modeled after the New York law.” (footnote omitted)); Ditsch v. Finn, 214 Wis. 305, 310, 252 N.W. 562 (1934) (“When a statute has been judicially construed before its adoption by this state, the construction given it by the courts of ......
-
Jefferson Gardens, Inc. v. Terzan
...and the courts of the state that adopt the statute adopt the interpretation previously given by the court of the other state. Ditsch v. Finn (Wis.) 252 N. W. 562. We accept and adopt the interpretation of the New York statute given by the New York courts. According to that interpretation, a......
-
Am. Bible Soc. v. Thronson (In re Hamilton's Estate)
...39 Wis. 651;Wescott v. Miller, 42 Wis. 545;Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430; In re Estate of Bullen, supra; Ditsch v. Finn, 214 Wis. 305, 252 N. W. 562. It was enacted as section 1 (3) of c. 44, Laws of 1903. Prior to the time when it was adopted, it had been construed by the c......