Kalb v. Luce
| Decision Date | 07 May 1940 |
| Parties | KALB v. LUCE et al. |
| Court | Wisconsin Supreme Court |
This is an appeal from a judgment of the Circuit Court for Walworth County; Edgar V. Werner, Judge, presiding.
Action by Ernest Newton Kalb against Roscoe R. Luce and others, for damages for alleged assault, false imprisonment, and wrongful confirmation of a mortgage foreclosure sale involving plaintiff's land. From a judgment of the Circuit Court dismissing the complaint, plaintiff appealed to the Supreme Court of Wisconsin, which affirmed the judgment, and the cause was removed to the United States Supreme Court. On rehearing conforming to mandate of the United States Supreme Court in 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370, reversing the judgment of the Supreme Court of Wisconsin in 231 Wis. 186, 285 N.W. 431.-[By Editorial Staff.]
Judgment of the Circuit Court reversed with directions.
The judgment in this case was affirmed (see 231 Wis. 186, 285 N.W. 431), whereupon the cause was removed to the Supreme Court of the United States. In that Court the judgment of this Court affirming the judgment of the trial court was reversed. Kalb v. Feuerstein et al., 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370. The mandate of the Supreme Court of the United States reversing the judgment of this Court has been received and judgment of reversal entered pursuant to it. Upon motion of the defendants the cause was retained in this Court after the reversal of the judgment of affirmance for the purpose of passing upon questions raised by the demurrer in the court below other than those considered when the case reached this Court on the first appeal.
The facts will be stated in the opinion.
J. J. McManamy, of Madison, for appellant.
Thorson & Seymour, of Elkhorn, and Moran & O'Brien, of Delavan, for respondents.
In his complaint the plaintiff alleges that the defendant, Roscoe R. Luce, was judge of the county court for Walworth county, and the defendant, George O'Brien, was the sheriff of said county; that the plaintiff was the owner of certain real estate more particularly described; that plaintiff and his wife gave a mortgage upon this real estate to Henry Feuerstein and Helen Feuerstein prior to March 7, 1933; that an action of foreclosure was begun and judgment of foreclosure was entered on April 21, 1933; that by act of the Congress of the United States, sec. 75 of the act of the Congress entitled. “An Act to establish a uniform system of bankruptcy throughout the United States” approved July 1, 1898, as amended, was further amended on August 28, 1935, 49 Stats. at Large, 942-945, ch. 792, such amendment being known as the new Frazier-Lemke Act (11 U.S.C.A. § 203); that on the 2nd day of October, 1934, the plaintiff invoked the provisions of said act by filing in the district court of the United States for the eastern district of Wisconsin, his petition and schedules as provided by law, and that on said day the matter was referred to the proper officer for further proceedings; that thereafter on the 27th day of June, 1935, an order was entered dismissing the plaintiff's petition; that on the 6th day of September, 1935, the plaintiff petitioned the district court of the United States for an order vacating the order made in that court on June 27, 1935, and reinstating his petition filed on the 2nd day of October, 1934; that on the 6th day of September, 1935, the order of dismissal was vacated and the plaintiff's petition was ordered reinstated; that on the 6th day of September, 1935, the plaintiff served on Roscoe R. Luce a certified copy of said order and such certified copy was filed in the county court for Walworth county on September 9, 1935; that on the 20th day of July, 1935, George O'Brien as sheriff of Walworth county, sold the premises under the judgment of foreclosure, which sale had not been confirmed on the 6th day of September, 1938; that thereafter and on the 16th day of September, 1935, Roscoe R. Luce as county judge, with full knowledge that plaintiff's petition had been reinstated, wrongfully and unlawfully issued an order confirming the sale, which report of sale set forth that the premises described in the plaintiff's complaint had been sold to Henry Feuerstein and Helen Feuerstein; that thereafter George O'Brien, as sheriff, wrongfully and unlawfully executed a sheriff's deed of sale, which was duly recorded in the office of the register of deeds on September 20, 1935; that on the 16th day of December, 1935, the defendants, Henry Feuerstein and Helen Feuerstein, wrongfully and unlawfully filed a petition in the county court for Walworth county, asking that a writ of assistance issue to the sheriff of said county; that on the same day Roscoe R. Luce wrongfully and unlawfully signed an instrument directing the writ of said court be issued as prayed in the petition; that thereafter and on the 12th day of March, 1936, the defendant, George O'Brien, together with divers other persons, wrongfully and unlawfully went upon the premises of said plaintiffs, dispossessed them of the premises and wrongfully and unlawfully placed Henry Feuerstein and Helen Feuerstein in possession of the same.
Plaintiff further alleges upon information and belief that “all of the acts of the defendants done and performed by them subsequent to September 6, 1935, were done and performed in collusion, to effect a plan or scheme to acquire possession of the plaintiff's farm, and all such acts done by the defendants subsequent to September 6, 1935, were done and performed while the plaintiff's petition hereinbefore referred to was pending in the District Court of the United States for the Eastern District of Wisconsin” all to the damage of the plaintiff in the sum of $7,000.
For a second cause of action the plaintiff realleges the facts set out in the first cause of action and charges that George O'Brien on the 12th day of March, 1936, wrongfully and unlawfully entered upon the plaintiff's premises, broke in to the plaintiff's dwelling house and assaulted and beat the plaintiff, etc.; that plaintiff is informed and believes that the entering upon plaintiff's premises by George O'Brien, his agents and servants, and assaulting and beating him was under the direction of the other defendants who wrongfully and unlawfully directed the said George O'Brien to make such entry and wrongfully remove the plaintiff and his family therefrom, all to the damage of the plaintiff in the sum of $2,000.00.
For a third cause of action plaintiff realleges matters set out in the first cause of action and further alleges that he was falsely imprisoned by George O'Brien and “that such confinement and imprisonment was under the direction of the defendants in this action, as this plaintiff is informed and believes.”
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