Hill v. Winterhalter
| Decision Date | 15 May 1900 |
| Citation | 107 Wis. 19,82 N.W. 691 |
| Parties | HILL, CLERK, v. WINTERHALTER ET AL. |
| Court | Wisconsin Supreme Court |
The respondents' argument upon motion for rehearing, while quite extended, presents nothing from the record which was not observed and fully considered by this court as bearing upon the facts of the case. The quotations from some opinion said to have been rendered by the circuit judge and from reporter's minutes and depositions can hardly be urged upon our attention seriously by the counsel. However great our confidence in him personally, the law does not permit us to accept his assertions to establish the proceedings at the trial. We are confined to the bill of exceptions for information on that subject. Were we permitted to inform ourselves from the “opinion” as to the mental processes of the circuit judge, the error involved in the judgment would be only the more apparent, for we should discover that he found the defendant assignee negligent as a matter of fact, and that he did not find as fact either that the old insurance could not have been renewed to the assigned, or that he could not have obtained other insurance, but merely that there was no preponderance of evidence to the affirmative of these propositions. Such a finding would not have supported judgment for defendant in the light of the rule as to the onus probandi adopted in our original decision, and since then more elaborated in Hildebrand v. Carroll, 82 N. W. 145. If the views expressed in that opinion persisted, the findings must have been signed without consideration, for they differ widely, in that they ignore the direction to declare the defendant assignee's negligence, and do declare the negative where they were directed only to express absence of preponderance of evidence to support the affirmative as to possibility of procuring insurance by due diligence.
2. Counsel complains of the grounds on which we disposed of matter urged in abatement of the action, insisting that the demurrer, allowed to be filed after once answering, did raise the objection which we held to have been waived by silence. In thus insisting he apparently confuses two very distinct things. The demurrer alleged as one of its grounds that plaintiff had an adequate and exclusive remedy in the voluntary assignment proceedings. This objection, going, as it would, to the maintenance of any independent action upon the bond, at least while the assignment proceedings are open and pending, we considered and now consider so obviously disposed of by the statute (section 1695, Rev. St.) expressly authorizing independent actions that no discussion further than citation of the statute is necessary. Boland v. Benson, 50 Wis. 225, 6 N. W. 819. A further objection was urged by respondents' counsel for that, although the assignment proceedings might not be the exclusive forum for the remedy upon the bond, yet that independent action thereon could not be maintained “until after its breach had been determined by the court in the assignment proceedings.” This objection, strictly in abatement, was not raised by the demurrer; indeed, it is difficult to see how it could have been, for the statute (section 2649) authorizes no such ground; nor was it raised by plea in abatement. To this latter objection was...
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