Kayser v. Hartnett

• Decision Date: 23 November 1886
• Citation: 30 N.W. 363,67 Wis. 250
• Parties: KAYSER v. HARTNETT.
• Court: Wisconsin Supreme Court

67 Wis. 250

30 N.W. 363

KAYSER

v.HARTNETT.

Supreme Court of Wisconsin.

November 23, 1886.

Appeal from circuit court, Fond du Lac county.

This was an action of replevin by Joseph Kayser against a constable, who (it is alleged in the complaint) wrongfully took and carried away a quantity of boots and shoes, the property of the plaintiff, which goods, as testified by him, he had obtained the title to by an assignment of a bill of sale from one Meyer Hess, for a full consideration; the same having been first sold by Kriesel to Hess, both of whom were boarding with him at the time. The answer denied the wrongful taking and detention, and alleged that on February 21, 1884, one Charles Kriesel was indebted to Phelps, Dodge & Palmer of Chicago, in the sum of $175 for boots and shoes; and, hearing that Kriesel had put on record a fraudulent bill of sale of his stock in trade to one Meyer Hess, they, on said day, attached said stock while yet in Kriesel's possession; that all legal and necessary steps were taken by Phelps, Dodge & Palmer in said proceedings, and a warrant was duly issued, and the constable, by virtue of said writ, seized the goods in question as the property of Kriesel, and said attaching constituted the alleged wrongful taking, etc. The cause was tried, and a special verdict rendered in favor of the defendant, which, on motion of the plaintiff, was set aside, and a new trial granted. At the March term of the court the case was again tried, and a verdict rendered in favor of the plaintiff. The defendant then moved to set aside the verdict, and to grant him a new trial, but the court overruled the motion, and entered a judgment upon the verdict. From this judgment defendant appealed, as well as from the order granting a new trial to the plaintiff, and the order refusing to set aside the verdict in his favor, and for refusing to grant to the defendant a new trial.H. J. Gerphside, for respondent, Kayser.

D. Babcock and T. W. Spence, for appellant, Hartnett.

TAYLOR, J.

This case was tried in the circuit court of Fond du Lac county, and a special verdict was rendered finding the facts in favor of the defendant. November 26, 1884, on the application of the plaintiff, the circuit court set aside the verdict, and granted a new trial, without terms, and stating no reason therefor. The order granting the new trial is dated January 3, 1885. To this order the defendant filed exceptions. The attorney for the plaintiff, Kayser, duly noticed the case for trial on the nineteenth of February, 1885, for the March term of said circuit court, commencing on the third day of March, 1885. On the first day of the March term the defendant moved to strike the case from the calendar, on the ground that there had been a stay of proceedings made in the action for 60 days, and because no copy of the order granting a new trial had ever been served on the defendant or his attorney. The only affidavit used on the hearing of this motion was the affidavit of the attorney for the defendant, showing that no copy of the order setting aside the verdict and granting a new trial had ever been served upon him. The motion to strike the case from the calendar was denied, and the case was, when reached upon the calendar, called and tried in the absence of Mr. Babcock, attorney for the defendant, and a verdict was found in favor of the plaintiff for the value of the goods taken, and six cents damages.

At the same time the defendant moved to set aside the verdict, and for a new trial-- First, because the case was improperly on the calendar; second, because the court erred in denying the motion to strike the case from the calendar; third, that the verdict is not supported by the evidence; fourth, that the verdict is improper in form; fifth, that the defendant suffered the default by surprise; sixth, the verdict is contrary to law. This motion was denied, and judgment was entered upon the verdict for the plaintiff, and from such judgment the defendant appeals to this court, and he also appeals from the order setting aside the verdict and granting a new trial to the plaintiff, January 3, 1885, and also from the order refusing to set aside the verdict for the plaintiff, and for refusing to grant to the defendant a new trial.

It is insisted by the learned counsel for the respondent that the court should not, upon this appeal, review the order granting a new trial to the plaintiff upon the first trial in the court below. He urges that it is too late to appeal from such order after another trial has been had under the order. Under the statute an order granting a new trial is an appealable order, (see subdivision 3, § 3069, Rev. St.,) and, unless the defendant has done something in the action which constitutes a waiver of his right to appeal from that order, his right remains. As it is admitted a copy of the order was not served on the defendant, his right to appeal was not lost by lapse of time. See section 3042, Rev. St. In Maxwell v. Kennedy, 50 Wis. 646, S. C. 7 N. W. Rep. 657, this court held that, admitting that a party might appeal from an order granting a new trial after a second trial had been had under such order, still the party excepting to the order might waive the right of appeal by taking proceedings in the case under such order, without appealing therefrom, which were inconsistent with his reliance upon his right to appeal from such order. As we have concluded that there is nothing in this record that would justify us in reversing the order granting the new trial, we do not feel called upon to decide whether the record discloses any acts done by the defendant which would amount to a waiver of his right to appeal from the order.

In looking into the record we think the verdict set aside was clearly against the weight of the evidence, and it also appears that the court erred in instructing the jury, especially in respect to the party upon whom the burden of proof rested. The fifteenth question submitted to the jury for their answer was as follows: “Was the sale from Kayser to Hess, of this property in question, made in good faith, and without any intent on the part of the plaintiff to defraud the creditors of Kriesel?” This question was answered in the negative. The learned judge, in submitting the question to the jury, closed his instructions as follows: “Before you answer...