Ill. Steel Co. v. Budzisz

• Citation: 106 Wis. 499,81 N.W. 1027
• Parties: ILLINOIS STEEL CO. v. BUDZISZ ET AL.
• Decision Date: 27 February 1900
• Court: United States State Supreme Court of Wisconsin

106 Wis. 499

81 N.W. 1027

ILLINOIS STEEL CO.

v.BUDZISZ ET AL.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by the Illinois Steel Company against Joseph Budzisz and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Action of ejectment. The subject of the controversy was an irregular piece of land about 40 feet wide by 170 feet long, defined, as to boundaries, by actual possession by the defendant. The complaint was in the usual form. The only material issues presented by the answer, originally, were raised by a general denial. The case was brought to trial on the part of defendants by attorneys substituted for the one who interposed the answer, some 21 months having elapsed since the action was commenced. On the day of the trial, before the jury was impaneled, an amendment to the answer was permitted, setting up the 10 and 20 years' statutes of limitations. Exception was taken by appellant's counsel to the allowance of such amendment. The evidence conclusively or strongly tended to prove, and plaintiff's counsel, in substance, admitted, that more than 20 years prior to the commencement of the action one John Skoczek inclosed the premises with a fence, built a house thereon and thereafter occupied the same continuously till about 1886, when he sold out and transferred the property and possession thereof to defendant Joseph Budzisz for a valuable consideration, who occupied the same continuously thereafter down to the time of the trial. The court decided that adverse possession of the property commenced when Skoczek inclosed and commenced to occupy the same; that he and his successor in possession occupied the property continuously for more than 20 years before the action was commenced; that the parol transfer of the property from Skoczek to Budzisz, and the entry by the latter under the former pursuant thereto, made the adverse possession thereof exclusive and uninterrupted from the time possession was taken by Skoczek. In accordance therewith a verdict was directed in favor of defendants, upon which the judgment appealed from was rendered.Van Dyke, Van Dyke & Carter, for appellant.

Fiebing & Killilea and M. C. Krause, for respondents.

MARSHALL, J. (after stating the facts).

Two questions are presented for consideration: (1) Did the trial court err in allowing the amendment, pleading title by adverse possession? (2) Did the possession of the second occupant, under the circumstances, continue the possession of his predecessor so as to satisfy the statutory call for an uninterrupted 20 years' continuous adverse possession?

1. Section 2830, Rev. St., says, “The court may, upon the trial * * * in furtherance of justice and upon such terms as may be just, amend any pleading * * * by correcting * * * a mistake in any respect, or by inserting other allegations material to the case.” The power to grant amendments under the statute is very broad, and its exercise rests solely in the sound discretion of the trial court, whose decision cannot be disturbed except for a clear abuse of judicial power. Insurance Co. v. Walrath, 53 Wis. 669, 10 N. W. 151;Smith v. Dragert, 61 Wis. 222, 21 N. W. 46;Morgan v. Bishop, 61 Wis. 407, 21 N. W. 263. The only limitation upon the power of the court, in cases where it may be exercised under any circumstances, and it is conceded this case is within the statute, is that it must be in furtherance of justice. Smith v. Smith, 19 Wis. 522; Morgan v. Bishop, supra. That is, the power must be exercised to that end, and there must be some reasonable ground for saying that such was the motive. The only condition of the exercise of the power is that it must be on such terms as may be just in the judgment of the trial court. Necessarily, there is no rule by which the presence of the statutory motive for the exercise of the power, or the sufficiency of the condition attached to it, can be tested, except that the act and the condition must be within the bounds of reason as applied to the particular case; and there is no rule on appeal by which to test the judgment of the trial court, except that it must have some reasonable ground to support it in view of the facts, and the rule that the legal presumption is that it has such ground till the contrary is made to affirmatively appear.

What has been said, with the brief reference to the facts upon which the amendment was allowed, will furnish a basis for a right conclusion regarding the question presented.

The defendants were evidently poor people, unacquainted with legal matters. The failure to plead the defense of the statute of limitations was the mistake of their attorney. After the case had been pending for considerably more than a year, defendants concluded that their interests required the employment of other attorneys, and they acted accordingly, resulting in the substitution, for the attorney who interposed the answer, of those who now represent them. The substitution took place April 15, 1899. Three days thereafter the amended answer was drawn. The motion for leave to file it was heard without objection for want of notice, and was granted without objection, except that “the defense of the statute of limitations cannot be set up by amendment,” and that the amendment, “under the circumstances, is not permissible.” We take it that the language of the objection, “the amendment under the circumstances is not permissible,” was merely explanatory of the language, “the statute of limitations cannot be set up by amendment.” So it will be seen that the only objection raised to the amendment was want of power in the court to permit it. All other objections were in effect waived. Counsel for appellant now concedes that the court had ample power in the premises. They could not seriously contend otherwise, since it has been so held even in taxtitle cases, where a much more stringent rule prevails than in cases like this, even after a reversal on appeal. Morgan v. Bishop, supra; Smith v. Dragert, supra.

But it is said the court exceeded its discretionary power by granting the amendment without terms, attention being called to Morgan v. Bishop, where there was a reversal on that ground, and Smith v. Dragert, where affirmance was grounded on the fact that terms of the amendment were imposed. Both cases differ materially from this, in that, after a failure on one trial by a reversal in this court, a new defense was interposed by amendment. It was in regard to that situation that Mr. Justice Lyon, in the Dragert Case said, the general rule, in ordinary cases, is considered to be that the party amending his pleading will be required to pay all taxable costs up to the time of granting leave to amend, and motion costs, but that such is the rule where a new defense is set up for the purposes of a new trial, as in this case.

The statute does not, under all circumstances, require the imposition of terms as a condition of granting leave to amend a pleading. The whole subject, as to the justice of the amendment, and whether it shall be granted upon condition and if so what condition, is left to the sound discretion of the trial judge. The imposition of terms has a twofold object: The infliction of a penalty for the negligence requiring a remedy by the amendment; and to give to the adverse party an equivalent for the injury to him by delay or increased expense because of the amendment. Where there is neither a reason for the infliction of a penalty, nor prejudice to the adverse party of any kind to be compensated for,--even the calling of adverse counsel into court for the purposes of the amendment, as was the situation in this case,--it cannot be said on appeal that the failure of the trial court to impose terms was either an abuse of discretion or a violation of any rule of law. Schaller v. Railway Co., 97 Wis. 31, 71 N. W. 1042;Carroll v. Fethers, 102 Wis. 436, 78 N. W. 604.

2. The main contention made by appellant's counsel is that the parol transfer by the first to the second occupant of the property, and his succession in possession under it, was not effectual to unite the two possessions into one continuous uninterrupted possession referable to the first entry, and existing thereafter for 20 years. We are referred to section 2302, Rev. St., which provides that, “No estate or interest in lands, other than leases for a term not exceeding one year * * * shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing subscribed by the party creating, granting, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.” It is said by way of emphasizing or in support of such contention, that the learned circuit judge expressed a personal opinion that, under such section, lands acquired by adverse possession cannot be transferred by parol; but a judicial opinion to the contrary, in harmony, as he supposed, with the decisions of this court. If that be so, we are compelled to say the learned judge was wrong as to the holdings of this court, and counsel in error in supposing there is any such difficulty as the trial court supposed in the way of his recovering in this case. Such errors spring, not only from a misapprehension of the decisions of this court, but the effect of an act creating privity between successive adverse possessors of property as regards the statute of limitations.

The transfer of property acquired by adverse possession is one thing, and the preservation of a condition of property as to adverse occupancy, which if permitted to continue long enough will devest the actual owner thereof of title and vest it in the adverse occupant, is quite another thing. The two things should not be confused, otherwise the statute referred to will be erroneously applied.

Title to property, acquired by adverse possession, is of the same nature as any other, and either is...