Rogers v. Hoenig

• Decision Date: 04 March 1879
• Citation: 1 N.W. 17,46 Wis. 361
• Parties: ROGERS v. HOENIG
• Court: Wisconsin Supreme Court

1 N.W. 17

46 Wis. 361

ROGERS v. HOENIG

Supreme Court of Wisconsin

March 4, 1879

APPEAL from the Circuit Court for Chippewa County.

Replevin. After a verdict and judgment for the plaintiff, the court made an order vacating the judgment and granting a new trial. From this order the plaintiff appealed.

The errors alleged by the appellant, so far as passed upon by this court, will sufficiently appear from the opinion.

Order reversed.

For the appellant, there was a brief by Jenkins & Boland, and oral argument by B. W. Jones.

For the respondent, there was a brief by Joseph S. Carr, and oral argument by Ed. E. Bryant.

HARLOW S. ORTON, J. EDWARD G. RYAN, C. J., no opinion.

OPINION

ORTON, J.

Without considering the merits of the motion to set aside the verdict and for a new trial in this action, upon which the order of the circuit court was made, and from which this appeal is taken, there appear to be two objections, either of which is fatal to this order.

First. A motion for the same purpose, and founded substantially upon the same grounds, had been denied, and the matters of such motion had become res adjudicata. Second Ward Bank v. Upman et al., 14 Wis. 596; Cothren v Connaughton, 24 Wis. 134; Kabe v. The Vessel "Eagle" et al., 25 Wis. 108. The judge of the circuit court has stated in the bill of exceptions, that it was his understanding that the first order was made without prejudice, and that it was inadvertently signed in its present form. The order of record is without qualification or reservation, and it must therefore be held to be conclusive, until it has been modified in some proper way and the statements of the judge even, extra-judicially expressed, whether in a bill of exceptions or otherwise cannot be taken to change or impeach the records of the court. Greenl. on Ev., § 522; Walker v. Rogan, 1 Wis. 597; Attorney Gen. v. Lum, 2 Wis. 507. The records of the court are amendable in a proper time, but then only upon motion. Hill v. Hoover, 5 Wis. 386.

Secondly. This order was not only not asked, but was made against the objection and protest of the defendant himself.

It appears that the defendant, although holding the office of sheriff, had not taken possession of the property in question in his official capacity, but as the agent of one Merchant B Rogers, the mortgagee; that it was claimed and recovered in this action by the plaintiff as the owner; that the defendant had fully paid the judgment for damages and costs, and had expended considerable money and time in the litigation, and had demanded of said Rogers reimbursement therefor, which had not been paid; that said Rogers was insolvent, and that he did not wish further litigation; and that these motions were made, and probably this appeal was taken, by said Rogers, in the name of the defendant, but against his will. It is hard to conceive by what law or right a party to...