Gemert v. Pooler

• Decision Date: 06 April 1920
• Citation: 177 N.W. 1,171 Wis. 271
• Parties: GEMERT v. POOLER.
• Court: Wisconsin Supreme Court

171 Wis. 271

177 N.W. 1

GEMERT

v.POOLER.

Supreme Court of Wisconsin.

April 6, 1920.

Appeal from Superior Court, Douglas County; Solon L. Perrin, Judge.

Action by Alice Gemert against W. D. Pooler. From a judgment for defendant, plaintiff appeals and moves to strike out defendant's bill of exceptions. Motion granted, and judgment reversed, with directions.

The plaintiff, claiming as owner and entitled to the immediate possession of a certain Ford automobile seized by defendant as deputy conservation warden on September 8, 1917, commenced this action of replevin in the municipal court of Douglas county on September 12, 1917, and had judgment in her favor. Defendant appealed, and a trial was had, a jury being waived, before the superior court for Douglas county on October 9, 1918.

The nature of the issues involved and the facts sufficiently appear from the findings of the trial court, which are substantially as follows:

Findings of Fact.

(2) That defendant was deputy conservation warden of the state of Wisconsin, and that in seizing the automobile he was acting under and by virtue of instructions given to him by the Conservation Commission.

(3) That on September 6, 1917, plaintiff was the owner of the automobile in question and had the same in her possession in the city of of Superior. That on or about said date John Gemert, the husband of the plaintiff, with her authority, knowledge, or permission, took the said automobile from the garage where the same was kept, and did on said day with three other men equip the same with guns and ammunition, and then proceeded to a point in said Douglas county for the purpose of “hunting deer.”

(4) That on said day John Gemert unlawfully killed a deer and deposited it in the automobile for the purpose of conveying it from such point to Superior.

(5) That such killing of the deer was unlawful and in violation of the game laws.

(6) That before John Gemert arrived in Superior with the car and the contraband deer, he was apprehended by the defendant, taken before a justice of the peace, charged with an offense, pleaded guilty, was convicted, and paid a fine of $50 and costs.

(7) That thereafter and on the same day the automobile was returned by John Gemert to the garage in Superior and to the possession of the plaintiff.

(8) That the plaintiff had no knowledge or information of the taking or using by the said John Gemert of the automobile for such purposes or of his arrest and conviction or the payment of said fine, until after the taking and seizure of the automobile by defendant as set forth in paragraph 9 of these findings, and never consented to such use thereof by said John Gemert.

(9) That on September 8, 1917, acting for and under the instructions of the Conservation Commission, the defendant took the automobile and kept the same until it was reclaimed by the plaintiff in November, 1917.

(10) Determined the value of the property and defendant's damages.

And conclusions of law as follows:

(1) That the defendant was justified in so taking and seizing the automobile by virtue of his office as deputy conservation warden of the state of Wisconsin.

(2) That in so seizing and holding the automobile he was justified by virtue of the instructions given him by the Conservation Commission, which instructions he was then executing.

(3) That the defendant is entitled to the possession of the automobile.

(4) That he is entitled to a judgment for its return or the value thereof in case such return cannot be had, with six cents damages, costs, and disbursements.

The plaintiff perfected her appeal to this court from that judgment in October, and the record was received here in November 1919. The statutory time for taking such appeal terminated December 16, 1919. No bill of exceptions was signed or made a part of such record.

March 1, 1920, defendant's attorney served a proposed bill of exceptions upon plaintiff's attorney containing the testimony taken on the hearing of the action, together with an exception by the defendant to a portion of a third finding of fact. Plaintiff's attorney objected to the allowance of such proposed bill of exceptions on the grounds that the time for appeal had expired, and that no stipulation had been made for so extending the time for settling such bill of exceptions, and that no excuse was shown by defendant for such delay. The bill of exceptions was signed by the trial court March 6, 1920. To such signing the plaintiff duly filed written exceptions. A supplemental return embodying such proceedings was filed herein March 8, 1920.

The plaintiff's attorneys moved in this court to strike out such bill of exceptions for the same reasons that were interposed by way of objections before the trial court.

Dietrich & Dietrich, of Superior, for appellant.

Archibald McKay, of Superior, for respondent.

J. J. Blaine, Atty. Gen., and M. B. Olbrich, Deputy Atty. Gen., amici curiæ.

ESCHWEILER, J. (after stating the facts as above).

[1] Appellant's motion made here to strike out the bill of exceptions contained in the supplemental return must be granted. Such bill of exceptions was proposed, served, and signed after the statutory period for taking an appeal in this action had expired, and was so signed without the consent and over the objection of plaintiff and appellant and with no reason being shown for such delay. Under the circumstances disclosed, the bill of exceptions should not have been allowed and cannot be considered. Nelson v. Stange Co., 140 Wis. 657, 663, 123 N. W. 152;Bonnell v. C., St. P., M. & O. R. Co., 158 Wis. 153, 147 N. W. 1046.

The conviction of plaintiff's husband spoken of in the findings was for violating section 29.43(1), Stats. This is part of chapter 29, Wis. Stats., providing for the control and regulation of wild animals. Said section 29.43(1) prohibits the transporting of any game during the closed season therefor whether lawfully or unlawfully taken, and his sentence was pursuant to the penalties provided in section 29.63(d).

Defendant seized the automobile in question and asserts a right to retain possession thereof pursuant to instructions of the conservation commission and under the final provisions of section 29.05(7) in the same chapter 29 and headed, “Seizure and Confiscation of Property,” and which said section reads as follows:

“They (viz., the State Conservation Commission and its deputies) shall seize and forthwith confiscate or destroy any apparatus, appliance, or device declared by any provision of this chapter to be a public nuisance; and shall seize and hold subject to the order of the commission any other apparatus, appliance, or any vehicle, or device, which they shall have reason to believe is being used in violation of this chapter, and if it be proven that the same is, or has been within six months previous to such seizure, used in violation of this chapter the same shall be confiscated.”

The property here...