Smith v. Carter

• Decision Date: 26 October 1909
• Parties: SMITH v. CARTER ET AL.
• Court: Wisconsin Supreme Court

141 Wis. 181

122 N.W. 1035

SMITH

v.CARTER ET AL.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by Byron G. Smith against Catherine E. Carter, executrix of Guy Carter, deceased, and others. The action was dismissed for want of prosecution, and plaintiff appeals. Affirmed.

This action, commenced in August, 1882, was to redeem from certain mortgages held by one Guy Carter on a valuable farm which had been delivered over to him in 1872 to apply the rents and profits to the taxes and to the interest and principal of those mortgages; also, to clear the title from those mortgages and from certain tax deeds and liens thereon fraudulently acquired by said Carter, who had died shortly before the commencement of the action. The case was (January, 1883) referred to one Phelps to hear, try, and determine, and he made his report in 1891. Pretty much all the circuit judges of the Twelfth judicial circuit for the last quarter of a century were disabled to act in the case by reason of having been of counsel. The circuit judge of the First circuit seems to have been invoked to hear the motions for modification and confirmation of this referee's report, and the argument of those motions was finally had in 1894. On December 30, 1901, Judge Fish, having previously given a written opinion, signed findings and order modifying the report of the referee. Such findings and order convicted Guy Carter of fraud with reference to the acquirement of tax liens, of refusal to perform his duty in keeping accounts and not applying the income, and in so obstructing the plaintiff in an opportunity to sell the land and in refusing to accept a conveyance at a given price in liquidation of his mortgages after having first promised to do so that the court decided he was entitled to no interest after 1880, the date of such tendered conveyance, and ordered application of sums of money so that it was obvious that the mortgage was more than satisfied at the time of such decision. He also in said order directed a re-reference to William Ruger, Esq., to restate the account in accordance with the court's decision, and to take an account by defendants of all receipts and disbursements with reference to the farm subsequent to the prior reference; they having continued in possession and control. There appears to have been no attempt to bring official notice to Mr. Ruger of his appointment or to gain his acceptance, and, as a matter of fact, it was known that he had been consulted, if not retained, as counsel for certain interests in the litigation at the time of such order of reference or afterwards. In June, 1902, the defendants moved to set aside said order made by the judge of the First circuit for the reason that it was wholly without jurisdiction, it having been signed by him at his chambers in Racine and physically transmitted to the clerk of the Rock county circuit court at a time when he was not presiding in that court, but another judge was. This motion was heard before the judge of the Thirteenth judicial circuit court, who on December 2, 1902, signed and filed an order that the motion be denied. This seems to have been supplemented or modified by an order on December 15th to the same effect, except that it awarded motion costs. This order was assailed because without...