Kissinger v. Zieger

• Decision Date: 09 March 1909
• Citation: 138 Wis. 368,120 N.W. 249
• Parties: KISSINGER v. ZIEGER.
• Court: Wisconsin Supreme Court

138 Wis. 368

120 N.W. 249

KISSINGER

v.ZIEGER.

Supreme Court of Wisconsin.

March 9, 1909.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by John Kissinger against Herman Zieger, in which plaintiff obtained a judgment on cognovit. From an order denying a motion to set aside the judgment, defendant appeals, and, from an order setting aside the sheriff's sale and deed to the execution purchaser, James B. Day, the purchaser, appeals. Affirmed on both appeals.

Among other references upon the part of the plaintiff were the following: Daniel, Neg. Instruments, par. 214, and cases; Knott v. Tidyman et al., 86 Wis. 164, 56 N. W. 632;Kuelkamp v. Hidding, 31 Wis. 503;Getzlaff v. Seliger, 43 Wis. 297; Spafford v. Janesville, 15 Wis. 526; McCabe v. Sumner, 40 Wis. 386; Ætna Ins. Co. v. McCormick, 20 Wis. 265;Stein v. Benedict, 83 Wis. 603, 53 N. W. 891;Sloane v. Anderson, 57 Wis. 123, 13 N. W. 684, 15 N. W. 21; Moore on Facts, pars. 938, 944, 1272; section 2832, St. 1898; Hill v. Hoover, 5 Wis. 354;Graffam v. Burgess, 117 U. S. 180, 6 Sup. Ct. 686, 29 L. Ed. 839.

Among other references upon the part of the defendant were the following: Small v. Prentice, 102 Wis. 256, 78 N. W. 415;Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426;Roemer v. Schmidt, 134 Wis. 1, 114 N. W. 127;Reeves v. Kroll, 133 Wis. 196, 113 N. W. 440;Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322;Collins v. Smith, 75 Wis. 392, 44 N. W. 510;Meehan v. Blodgett, 86 Wis. 511, 57 N. W. 291; 11 A. & E. Ency. Law, 650.Boden & Beuscher, for appellant and respondent Zieger.

F. A. Geiger, for appellant Day.

Butterfield & Rix, for respondent Kissinger.

TIMLIN, J.

The defendant, Zieger, appeals from an order denying his motion to vacate a judgment entered upon cognovit in favor of the plaintiff and against Zieger and one Reingruber, while the impleaded defendant, James B. Day, a purchaser at execution sale under said judgment, appeals from an order setting aside the sheriff's sale and the sheriff's deed to Mr. Day thereon.

Taking up separately the appeal of Zieger, it appears that on May 11, 1906, the plaintiff Kissinger had judgment on cognovit in the circuit court for Milwaukee county against the defendants Zieger and Reingruber for $553.98. This judgment was also docketed in the circuit court for Washington county, and execution thereon from the circuit court for Washington county issued to the sheriff of that county on June 4, 1906. The defendants resided in Washington county, and the sheriff of that county called with the execution at the residence of Zieger, and, not finding the latter at home, made demand of payment from Zieger's wife, who is a weak-minded or insane person, and thereafter, and on June 12, 1906, returned the execution wholly unsatisfied. Execution was also issued from the circuit court for Milwaukee county to the sheriff of Milwaukee county, who levied upon a house and lot in the city of Milwaukee, the property of Zieger, and on July 30, 1906, by virtue of said execution, sold the house and lot to James B. Day. Thereafter, and on November 7, 1907, the sheriff of Milwaukee county pursuant to such sale executed and delivered a sheriff's deed to the purchaser Day. On December 3, 1907, Zieger commenced proceedings to vacate the judgment, sheriff's sale, and deed upon affidavits and a proposed answer. It appeared by the affidavit of Zieger that his Milwaukee property so levied on and sold brought him an annual rental of over $300, and that he owned a homestead in Washington county, and that he had no knowledge that he had signed the judgment note until he received notice that Day claimed to own said property in the city of Milwaukee, and made demand on his tenants to attorn to Day. He further averred that no demand was ever made upon him to pay this judgment note, and that he had no prior knowledge of the entry of judgment thereon or the issue of execution; that Day was endeavoring to dispose of the property asking $2,500 for it; and that the property was worth not less than $4,500; that there was collusion between Day and the plaintiff whereby notice was withheld from Zieger. The proposed answer averred, in substance, that the indebtedness for which the note was given was that of Reingruber, and that Zieger was an accommodation maker of the note, and that his signature to the note was procured while he was in a state of intoxication brought on by the agent of the plaintiff for that purpose, and that his intoxicated condition was such that he did not know what he was signing, and did not know at any time until November 26, 1907, that the note so signed was a judgment note. He denied that he had received any notice from plaintiff's attorneys, or that any demand was made upon him for payment of the note. The plaintiff showed in opposition that the note referred to in the answer was given on April 24, 1905, in renewal of a prior note of Zieger and Reingruber for $500, the consideration of which was money loaned by the plaintiff at the request of Zieger to Reingruber. One of plaintiff's attorneys presented an affidavit showing that the note in question was received for collection in the early part of May, 1906, and demand of payment was made from Reingruber and attempted to be made from Zieger, but the latter was not found at home, and that on May 21, 1906, a letter had been mailed by this attorney to Zieger, notifying the latter that judgment had been entered upon the note. This letter was properly mailed, and contained on the envelope a direction to return the letter to the writers if not called for within five days, and the same was never returned. The execution to the sheriff of Milwaukee county was not issued until after the Washington county execution was returned unsatisfied. On July 24, 1907, Reingruber was adjudged a bankrupt. It appeared that Zieger lived about 1 1/2 miles from the post office at South Germantown, Wis., and that all first-class mail received there addressed to Zieger is either delivered to him personally or forwarded by the next train after receipt thereof to Zieger at Rockfield, Wis., a village about 1 1/2 miles distant from Zieger's residence. The undersheriff of Milwaukee county presented an affidavit that during the time in question it was the custom of that office to notify the person upon whose property execution had been levied either by personal notice or by mailing a copy of the printed notice of sale to such person, and that to his best recollection he mailed such a copy to Zieger at the post office address given to him by the attorneys for the plaintiff which was the proper address.

Upon the foregoing facts, the circuit court properly refused to vacate the judgment. When the motion was submitted for decision to that court, it appeared, as indicated in the foregoing statement of facts, that the alleged defense of Zieger with reference to his intoxicated condition at the time of signing the note in question and the procurement of such signature by plaintiff's agent would constitute no defense to the action available on this motion because the note so procured was merely given in renewal of a prior note unimpeached and founded upon a valuable consideration. Zieger therefore showed no equity to have the judgment vacated, no matter what the facts were as to notice or knowledge of the entry of the...