Geisinger v. Beyl

• Decision Date: 27 March 1888
• Citation: 37 N.W. 423,71 Wis. 358
• Parties: GEISINGER v. BEYL.
• Court: Wisconsin Supreme Court

71 Wis. 358

37 N.W. 423

GEISINGER

v.BEYL.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Polk county; S. H. CLOUGH, Judge.

This action of ejectment by Samuel Geisinger against August Beyl, for a quarter section of land described, in Polk county, Wis., was commenced February 12, 1876. The complaint is in the statutory form. The only answer is a general denial. On the trial of that issue before BARRON, J., on September 28, 1876, the jury returned this verdict, and nothing more: “We, the jury, empaneled to try the above-entitled action, find for the plaintiff that he is entitled to the possession of said premises, and that he is the owner thereof in fee-simple absolute.” October 26, 1876, the trial court made an order therein to the effect that the plaintiff have judgment to which he had shown himself entitled, upon the payment to the defendant, within 90 days, of the amount for which the premises had been sold, with penalty and interest, as provided by chapter 22, Laws 1859, and also all taxes paid by the defendant subsequent to such sale, with interest; and that, if the plaintiff failed to pay said amounts within the time named, his action be dismissed, with costs, and any further action for the same cause be thereby barred. That order recited the verdict, and that the plaintiff had not made it to appear affirmatively that the premises were not liable to taxation for the tax for which they were sold, nor that the premises were redeemed from such sale, nor that such taxes had been paid. February 9, 1877, and on motion of counsel for the plaintiff, a judgment was entered therein with the clerk upon said verdict, to the effect that the plaintiff recover possession of said premises, in accordance with said verdict, together with $34.67, the costs and disbursements of the action, and that execution issue therefor. March 12, 1877, upon affidavits and the records, the plaintiff was ordered to show cause, at a time and place named, why said judgment should not be vacated, annulled, and set aside, and the action dismissed with costs, on the grounds that the plaintiff had failed to comply with said order of October 26, 1876, and that, even if he had complied with it, he could only have judgment upon application to the court. Upon the hearing of that motion the same was denied September 12, 1877. From that last order the defendant appealed to this court October 27, 1877; and June 28, 1878, the same was reversed (44 Wis. 258) on the ground that the order of October 26, 1876, though irregular, could not be treated as a nullity, and hence that such judgment was irregular, and should have been set aside; and the remittitur therein was filed in the trial court December 20, 1878. June 23, 1879, the trial court, BARRON, J., presiding, made an order setting aside said judgment, also denying a motion to set aside the order of October 26, 1876, and to grant leave to the plaintiff to enter judgment upon the verdict, with costs; and also that the motion of the defendant to dismiss the action, with costs, be denied without prejudice. October 13, 1887, upon notice served, the trial court, CLOUGH, J., presiding, ordered, in effect, that the defendant have judgment therein, dismissing the action, with costs to be taxed. That order recited, in effect, the verdict, the order of October 26, 1876, and the failure of the plaintiff to comply with that order. October 17, 1887, on motion of the defendant's attorneys, judgment was entered therein dismissing the action, and that the defendant recover of the plaintiff $31.20, costs and disbursements as taxed; which judgment, in effect, recited the trial of the action, the rendition of said verdict, the making and the substance of said order of October 26, 1876, the plaintiff's failure to comply therewith, the order of October 13, 1887, and this further recital, and nothing more, to-wit: “And it having appeared, upon the trial, that the defendant claimed title to the said premises by virtue of certain tax deeds issued by the county clerk of said Polk county.” From this last judgment, so entered October 17, 1887, the plaintiff brings this appeal.C. E. Willson, for appellant.

Baker & Spooner and Pinney & Sanborn, for respondent.

CASSODAY, J., ( after stating the facts.)

This is an action of ejectment tried by a jury 11 years ago. The verdict was to the effect that the plaintiff was the owner in fee, and entitled...