Eberhardt v. SanGer

• Decision Date: 11 January 1881
• Citation: 8 N.W. 111,51 Wis. 72
• Parties: EBERHARDT v. SANGER.
• Court: Wisconsin Supreme Court

51 Wis. 72

8 N.W. 111

EBERHARDT

v.SANGER.

Supreme Court of Wisconsin.

Filed January 11, 1881.

Appeal from circuit court, Fond du Lac county.

H. C. Kunkel and C. A. Martin, for respondent.

Cotshausen, Sylvester & Scheiber, for appellant.

CASSODAY, J.

The complaint alleged that the defendant unlawfully took from the possession of the plaintiff, and carried away, certain property of the plaintiff of the value of $1,820, and converted the same to his own use, and that by reason thereof the plaintiff had sustained $4,000 damages.

The answer contained a general denial, and alleged that Francis Meixner was at the time the owner of the property, and that the same was taken by defendant as sheriff of Milwaukee county upon an execution issued to him August 28, 1877, upon a judgment previously rendered against Meixner, subject to a chattel mortgage of $375 upon a portion of the goods in favor of Peitsch, and which goods had been taken from him upon the mortgage.

Upon the trial the plaintiff admitted that he obtained the property from Meixner upon a bill of sale executed, bearing date, and delivered June 16, 1877, expressing a consideration of $3,000, covering all the property then used or kept by Meixner in his business, and that he had thereby assumed the chattel mortgage to Peitsch; that he paid nothing down, but released a chattel mortgage of $700 on the goods held by himself, and that the next day he gave to Meixner his four notes for the balance, ($1,925,) payable one, two, three, and four years from date; that afterwards, and on the same day, he learned that Schmidt also had a chattel mortgage on the goods for $300, which Meixner had forgotten to mention, and so he assumed that also, and so one of the notes so given was thereupon destroyed, and another given in its place, so that the final balance to be paid by the plaintiff, as represented by the notes, was $1,625, payable as above stated.

Thus the issue presented was whether the sale from Meixner to the plaintiff was made with the intent to defraud the then-existing creditors of Meixner, including the plaintiffs in the execution. Upon that issue the trial court required the jury to answer 37 distinct questions submitted to them. The statute provides that such special verdict “shall be prepared by the court in the form of questions, in writing, relating only to material issues of fact, and admitting a direct answer, to which the jury shall make answer in writing.” Section 2858, Rev. St.

In Hutchinson v. Ry. Co. 41 Wis. 552, it was held, per Ryan, J., that “in the absence of a general verdict the special findings should include all of the material issues made by the pleadings;” and in the same case it was, in effect, held that undisputed questions of fact did not constitute a material issue. Williams v. Porter, 41 Wis. 422;McNarra v. Ry. Co. Id. 69.

In Davis v. Farmington, 42 Wis. 431,Lyon, J., said the right to a special verdict under this statute was “necessarily limited to material and controverted questions of fact.”

In Carroll v. Bohan, 43 Wis. 218,Ryan, C. J., said: “The statute providing for special verdicts is an excellent one, tending to dispel the occasional darkness visible of general verdicts. But special verdicts are worse than useless if courts do not submit for them single, direct, and plain questions, and insist upon positive, direct, and intelligible answers.”

In Ward v. Busack, 46 Wis. 407, 18 questions were submitted, and error was alleged because the trial court did not submit one more; but Taylor, J., said: “From our knowledge of the nature of the special verdicts which have come under the consideration of this court we believe we are justified in saying that the tendency of some of the profession, in making use of the law which requires that a special verdict shall be rendered whenever demanded, to abuse it by demanding that the jury shall answer an infinite series of questions, the object and tendency of which is to confuse, embarrass, and confound the jury, instead of elicting the facts upon which the rights of the parties depend, needs the restraining hand of the judges presiding at the circuits; and that this court will take pleasure in sustaining such judges in every proper effort to make a special verdict a concise statement of the real facts at issue in the case. * * * A special verdict which disposes of all the litigated issues in an action is sufficient. What is admitted by the pleadings need not be found in the verdict.”

In Cotzhausen v. Simon, 47 Wis. 103,Orton, J., aptly said: “It is to be regretted that, in a case of so much importance, and so fully and ably tried, the findings are so defective, imperfect, and irrelevant.”

In Blesch v. Ry. Co. 48 Wis. 168, there were but two questions for the consideration of the jury, one of which was the location and operation of the road, and the other the consequent damages, and yet 13 questions were submitted. Taylor, J., speaking for the court, said: “Upon the whole record we are satisfied that the case was fairly tried upon the merits up to the point where the same was submitted to the jury; and we regret that we are compelled to reverse this judgment on account of irregularities which occurred in procuring the final verdict of the jury. This case presents a gross perversion of the statutory right of a party to a special instead of a general verdict. * * * The third question put by the court, and the fifth one put by the plaintiff, covered the whole question of damages. All the others, by both the plaintiff and defendant, were questions strictly in the nature of an examination of the jury to ascertain what elements of damage they considered in making up the gross damage, and requiring them to fix a definite sum allowed by them for each of these elements. This examination of the jury tended only to confuse and embarrass, without in any manner aiding them or the court in arriving at a true verdict. The result of the process in this case is a clear demonstration of the perniciousness of the practice.” And then, after referring to the statute, he said: “We suggest that the learned circuit judge, in taking special verdicts, should adhere to the directions of this statute, * * and submit only such as relate to the material issues, and rigorously exclude all questions which have no other object than to obtain from the jury reasons which actuate them in finding such material facts. * * * We have been constrained to make these strictures * * * because the vicious practice in this case has been highly prejudicial to the interests of the parties litigant, and furnishes a favorable opportunity to urge upon the bench and bar the necessity of a greatly-needed reformation of the practice in this particular.”

In Singer Co. v. Sammons, 49 Wis. 316, it was held that there was no error in refusing to submit immaterial questions.

These references, and quotations from the decisions of this court, are made, not only because they are applicable to the special verdict in this case, but by way of remembrance of the position so often taken by this court. Here the pleadings really put in issue but two material issues of fact, and yet the jury were required to answer 37 questions. Several of these questions were undisputed, and hence not “material issues of fact” for the jury, within the meaning of the statute, as...