Lierman v. O'Hara

• Decision Date: 08 April 1913
• Citation: Lierman v. O'Hara, 153 Wis. 140, 140 N.W. 1057 (Wis. 1913)
• Parties: LIERMAN v. O'HARA ET AL.
• Court: Wisconsin Supreme Court

153 Wis. 140

140 N.W. 1057

LIERMAN

v.O'HARA ET AL.

Supreme Court of Wisconsin.

April 8, 1913.

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

Action by Ernst Lierman against Thomas O'Hara and others.From a judgment dismissing the complaint, plaintiff appeals.Affirmed.

This is an action for the recovery of damages for the unlawful taking and converting by defendants to their own use of a roan mare, alleged to be the property of the plaintiff and of the value of $150.It is alleged that prior to September 16, 1910, the plaintiff pastured this mare on his brotherAlbert Lierman's farm in Sheboygan county, and that defendants on that day wrongfully took possession of her, and converted her to their own use, to the plaintiff's damage in the sum of $225.It appears that Thomas O'Hara and Adam Trester at the time of the transactions here involved had been duly elected, and were acting as justices of the peace of Sheboygan county; that A. A. Hoehne was the duly elected sheriff of this county; that George Goodel was the undersheriff; and that E. H. Haehnke was acting as a deputy sheriff.In May, 1908, one Max Neitzke of the city of Milwaukee was indebted to one Fred Steinmueller of the same place in the sum of $690.10.On May 3, 1908, Neitzke, through his attorney pursuant to an agreement of the parties, delivered to Steinmueller a paper writing in the form of a promissory note, stating that Neitzke was indebted to Steinmueller $690.10, and a chattel mortgage.The mortgage was properly executed and signed by Neitzke, covering among other property the roan mare here in question; but the writing in form of a promissory note was not signed.The mortgage was duly recorded in the office of the city clerk of the city of MilwaukeeMay 29, 1908, and an affidavit of the renewal thereof was filed on the 2d day of May, 1910, in the city clerk's office.On March 31, 1910, Neitzke by bill of sale purported to convey the unincumbered title to the mare in question to the plaintiffErnst Lierman, and received a credit from plaintiff of $100 on a judgment plaintiff had against him.This bill of sale was not recorded.Two days thereafter plaintiff sent the mare to the farm of his brother, Albert Lierman, at Random Lake, where she was kept until September 16, 1910.On this day Steinmueller, the mortgagee, and Haehnke, as deputy sheriff, took the mare from Albert Lierman's possession under a proceeding in replevin issued by O'Hara as justice of the peace.On September 20th, three days before the return day of the replevin proceeding under which Haehnke claimed to hold the mare, Steinmueller demanded possession of her from him upon the ground that the replevin proceeding before Justice O'Hara, which was dismissed on September 23d for want of prosecution, was void.Haehnke refused to surrender possession of the mare.On September 22d, upon Steinmueller's application, a warrant of replevin was issued by Justice Adam Trester to obtain possession of the mare from Haehnke.Goodel under this writ took possession of the mare.On September 26th Albert Lierman became a party to this action, claiming a lien for the feed and care of the mare in the sum of $100.He appeared by Kanneberg and Heilbron, attorneys who also represented the defendant Haehnke; Lierman claiming and alleging that he was entitled to possession of the mare under the right of lien as above stated, and the defendant Haehnke alleging that he was entitled to possession of the mare under the writ of replevin issued by Justice O'Hara.After trial of this action judgment was entered awarding possession of the mare to the plaintiff Steinmueller as the mortgagee of Neitzke.An appeal was taken from this judgment to the circuit court of Sheboygan county, where the action is still pending.The foregoing are the material facts relied on by the defendants to justify their taking possession of the mare, and upon which they deny any liability to the plaintiff for a wrongful taking and conversion of her.

The instant action was tried in circuit court to a jury who rendered a special verdict, finding, in substance, (1) that Steinmueller did not make demand for the mare from Albert Lierman prior to commencing suit before Justice O'Hara; (2) that the purported promissory note and the chattel mortgage were not delivered by Kinny to Steinmueller without...