Donkle v. Milem

• Decision Date: 25 May 1894
• Citation: 59 N.W. 586,88 Wis. 33
• Parties: DONKLE v. MILEM.
• Court: Wisconsin Supreme Court

88 Wis. 33

59 N.W. 586

DONKLE

v.MILEM.

Supreme Court of Wisconsin.

May 25, 1894.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Arthur A. Donkle against Matthew Milem and others. From a judgment for defendant Milem, plaintiff appeals. Affirmed.

The appellant entered judgment by confession in the circuit court for Dane county, on an ordinary judgment note, joint and several in form, against Arthur B. White, Susan G. White, and the respondent, Matthew Milem. Milem applied by motion to the court for an order opening the judgment as against him, and to be allowed to answer, founded on the affidavits of all of the defendants, and a proposed answer, duly verified, denying the execution of the note described in the plaintiff's complaint, but admitting that he did sign a note for the same amount with the defendant Arthur B. White, and as his surety; that the plaintiff knew that he signed it only as surety or accommodation maker with said White; and that the latter received the whole of the consideration thereof. It alleged an extension of the time of payment of said note for one year, for a good and sufficient consideration, by agreement between the defendant Arthur B. White and the plaintiff, but that he (Milem) had no notice thereof, and never consented thereto. The answer further alleged that, after the note was signed by Milem and delivered to the plaintiff, it was materially altered and changed by the act or procurement of the plaintiff, without his consent thereto; that, without his knowledge or consent, the plaintiff procured the defendant Susan G. White to sign the said note as a maker. The court allowed the proposed answer to the complaint, and directed the judgment to stand as security, and stayed proceedings until the determination of the issue, but no appeal was taken from this order. The plaintiff, for an amended complaint, and by way of reply to the answer served by the defendants, set up, in substance, the execution and delivery of the note and warrant of attorney by the defendant Arthur B. White for a loan to him of $200, and by the defendant Milem to secure it, and that the money was lent upon the faith and credit of Milem. Upon the maturity of the note, White requested an extension of time for one year, offering the signature of his wife, Susan G. White, to the note, if it should be granted, and that the plaintiff informed him that he would grant such extension, provided Milem would consent thereto, and not otherwise. Upon the representation of White that he had seen Milem, and knew he would consent to the extension, he had his wife, Susan G., sign her name to said note, below the names of the original makers. The plaintiff refused to grant any extension until he had seen Milem. Milem refused to consent to the extension. The plaintiff informed the signers, in the presence of Milem, that he would not consent to the extension; and, White and Milem having neglected and refused to pay the note, judgment was entered thereon, as before stated. It alleged the insolvency of White, and that the only security for said debt and judgment was that afforded by the signature of Milem, upon which, and not otherwise, plaintiff consented to make the loan, and alleged that he had in no way granted any extension of time for the payment of the note, and closed with a demand for judgment for the amount and costs, asking that said judgment, as against Susan G. White, be vacated. The case coming on for trial, the defendant Milem, as appears from the judgment, objected to the admission of any testimony under the amended complaint, and the court ordered judgment thereon against the plaintiff, and for the defendant Milem, for his costs, which was entered accordingly, and adjudging that the judgment theretofore entered be vacated and set aside as to him. The plaintiff appealed.G. S. Martin and J. B. Smith, for appellant.

Smith & Buell, for respondent.

PINNEY, J. (after stating the facts).

1. The order opening the judgment as to the defendant Milem, and allowing him to serve an answer and defend, was an order “upon a summary application in an action after judgment,” and was appealable. Rev. St. § 3069, subd. 2. But the plaintiff did not appeal from this order, and his right to do so did not survive the judgment thereafter rendered in favor of the defendant Milem. Machine Co. v. Gurnee, 38 Wis. 533. There is no bill of exceptions making the ruling of the court on the motion to open the judgment and allow the proposed defense a part of the record, and there is nothing whatever to show that the plaintiff excepted to this order. It has uniformly been held, in numerous cases, for a period of more than 30 years, that, on an appeal from a judgment, this court cannot review interlocutory orders which do not involve the merits and necessarily affect the judgment, unless they are excepted to, and, with the papers on which they are founded, embraced in a bill of exceptions. Cornell v. Davis, 16 Wis. 686;Williams v. Holmes, 7 Wis. 168, and cases cited in note.

2. It is claimed that the order in question is reviewable on appeal from the judgment in favor of Milem, under section 2, c. 242, Laws 1893, similar in its provisions to Rev. St. § 3070, which provides that, “upon an appeal from a judgment, as well as upon a writ of error, the supreme court shall review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record.” Mere interlocutory motions and orders, not involving...