Piotrowski v. Czerwinski

• Decision Date: 09 March 1909
• Citation: 120 N.W. 268,138 Wis. 396
• Parties: PIOTROWSKI v. CZERWINSKI ET AL.
• Court: Wisconsin Supreme Court

138 Wis. 396

120 N.W. 268

PIOTROWSKI

v.CZERWINSKI ET AL.

Supreme Court of Wisconsin.

March 9, 1909.

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

Action by N. L. Piotrowski against Stanley E. Czerwinski and others. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The court found that on October 4, 1904, the defendants executed and delivered to Ignatz Kowalski their promissory note for $275, which became due January 2, 1905, and that on the same date they executed another note for a like sum, which became due March 2, 1905, and that the consideration for which said notes were given to said Kowalski was an indebtedness due him from the Polish Publishing Company, a corporation in which the defendants were interested, and that said defendants were not jointly indebted to said Kowalski at the time said notes were given; that at the time the notes were executed all of the parties resided at Milwaukee, Wis. but that about a month thereafter said Kowalski removed to the city of Chicago, and ever since has been, and still is, a resident of the state of Illinois; that the plaintiff is an attorney at law residing in Chicago, and that he purchased the note first maturing after it became due, and purchased the second of said notes before the same became due, but took the same with full knowledge and notice of all equities existing between said Kowalski and the defendants; that said Kowalski commenced an action on the note due January 2, 1905, and that the same was dismissed because of his failure to comply with an order requiring him to file security for costs, and judgment for costs amounting to $32.20 was recovered against him in said action; that prior to the date of the execution and delivery of said notes said Kowalski was indebted to the defendant Stanley E. Czerwinski in the sum of $102.23, together with interest thereon, and to the defendant Albert H. Czerwinski in the sum of $171.75, with interest, and to the defendant Max Dominski in the sum of $311, and to the defendant John Gawin in the sum of $112.95; that said Kowalski is now, and ever since the maturing of each of said notes has been, insolvent; that the plaintiff is not, and was not, a bona fide holder of either of said notes, and that said Kowalski is the real and sole owner of the same; that plaintiff is only interested therein as attorney for Kowalski; that plaintiff paid not more than the sum of $100 for the note first maturing, and not to exceed $150 on the second of said notes. As conclusions of law the court found that the sums due to the several defendants from said Kowalski constituted equitable counterclaims of said defendants against any sum found to be due upon the notes in suit, and that the defendants were entitled to judgment dismissing the complaint. No bill of exceptions was settled in the case, so that the findings of the court are verities. The error assigned is that the findings of fact do not support the conclusions of law and the judgment entered thereon.Markham & Schoelkopf, for appellant.

Churchill, Bennett & Churchill, for respondents.

BARNES, J. (after stating the facts as above).

Under the findings made by the court this action might well have been dismissed under the provisions of section 2605, St. 1898, because not brought by the real party in interest, and because it was not shown that the plaintiff came within any of the exceptions contained in the statute. The contention of the appellant is that the findings do not support the judgment. From them it appears that Kowalski is a nonresident; that he is insolvent; that he honestly owes the defendants sums exceeding the amount of the notes sued on; and that if they cannot set off the indebtedness due from him against the plaintiff, they must lose it altogether. Subdivision 3 of section 2656 provides that where a plaintiff is a nonresident of the state, any cause of action arising within the state, and existing at the...