Sibley v. Weinberg

• Decision Date: 28 November 1902
• Citation: 92 N.W. 427,116 Wis. 1
• Parties: SIBLEY v. WEINBERG ET AL.
• Court: Wisconsin Supreme Court

116 Wis. 1

92 N.W. 427

SIBLEY

v.WEINBERG ET AL.

Supreme Court of Wisconsin.

Nov. 28, 1902.

Appeal from municipal court of Racine; David H. Flett, Judge.

Action by Gideon Sibley against Maude Weinberg and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This was an action of replevin, in which the complaint substantially alleged that the plaintiff held a chattel mortgage upon certain dental apparatus and furniture sold by him to one Nathan Weinberg, whereon there remained due about $10, and that he held title to certain other dental apparatus by virtue of the reserved condition in certain promissory notes given therefor by said Nathan Weinberg, providing that until their payment title and ownership should remain in the plaintiff, upon which notes there was due $74.60 and interest; that said Nathan Weinberg died July 5, 1900, and that a special administrator of his estate, on July 17, 1900, under an order of court, made a bill of sale of all said property to the defendant Charles I. Shoop for the nominal consideration of $500, and that said transaction was, by connivance with the defendant Shoop and Maude Weinberg, the widow of said Nathan Weinberg, to defeat the latter's creditors, and that said Shoop still claimed to be the owner, but that in pursuance of said connivance the defendant Maude Weinberg was still in possession; that said defendants had wrongfully taken, and still did unlawfully and wrongfully detain, all said property, of which plaintiff was the owner, and lawfully entitled to possession, which was refused him, although demanded. The defendants having defaulted after appearance, the plaintiff gave notice of application for judgment, and on the day notified--December 6, 1901--appeared in court, and offered evidence, extending, however, only to the introduction in evidence of his notes and mortgage, proof of the amounts due thereon, and proof of the value of the property and of the value of its use during the time that the defendants were charged in the complaint to have retained it. Thereupon, after argument, to wit, December 31, 1901, the court entered an order reciting that the evidence had failed to prove the allegations of the complaint, and failed to show that the personal property was unlawfully taken or unlawfully detained by the defendants, or either of them, and ordering judgment of nonsuit. Thereupon the plaintiff requested to have the case reopened, and an opportunity given to furnish such further proof as the court desired to enable it to enter judgment for the plaintiff according to the prayer of the complaint, which request was denied, and excepted to. Thereupon judgment of nonsuit was entered, reciting that the evidence and proofs presented failed to establish a cause of action in favor of the plaintiff and against the defendants, from which judgment the plaintiff appeals.W. W. Rowlands, for appellant.

Cooper, Simmons, Nelson & Walker, for respondents.

DODGE, J. (after stating the facts).

The principal question raised upon this appeal is the true construction of subdivision 2 of section 2891, Rev. St. 1898, which provides that judgment may be had if the defendant fail to answer the complaint in actions other than those arising on contract for the recovery of money only, as follows: “In other actions the plaintiff may, upon the like proof, apply to the court for judgment according to the demand of the complaint. If the taking an account or proof of any fact be necessary to enable the court to give judgment or to carry the judgment into effect the plaintiff may, with a view to such application, at any time after the expiration of the time for answering, have an order of reference, by the court or a judge, to take such account or proofs and report the same to the court at any time, in the circuit, at which judgment may be rendered, and such reference may be executed in any county most convenient therefor; or upon such application being made the court may take the account, or hear the proof, or in its discretion order a reference for that purpose. And when the action is for the recovery of money only or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury. If the defendant shall have appeared in the action he shall be entitled to eight days' notice of such application for judgment.” It is contended by the appellant that under this statute the plaintiff, upon failure of answer, is absolutely entitled to judgment upon the facts alleged in the complaint and according to the prayer for relief, without any proof of the cause of action so set up, he merely being permitted to furnish proof of such incidental facts as may enable the court to properly frame its judgment in certain cases. On the other hand, it is contended, first, that this section does not dispense with proof at all; that the plaintiff is required to prove the case made by his complaint by evidence, and cannot invoke the undenied allegations of the complaint for that purpose, although verified. But, further, if that extreme...