Snyder v. Malone
| Decision Date | 31 January 1905 |
| Citation | 102 N.W. 354,124 Wis. 114 |
| Parties | SNYDER v. MALONE ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Rock County; B. F. Dunwiddie, Judge.
Action by F. H. Snyder against Frank Malone and A. Lorenze. from an order refusing to restrain execution in favor of Lorenze on the judgment for plaintiff, assigned to Lorenze, Malone appeals. Reversed.
This action was commenced in the municipal court for Rock county to recover on a promissory note executed by the defendant Frank Malone, and payable to the defendant A. Lorenze, who assigned it to plaintiff, F. H. Snyder, before its maturity. The note bears date August 17, 1899, and was for the sum of $54.28, due 90 days from date. The action was commenced by service of summons on defendants on November 24, 1899. The defendant Malone at no time appeared in the action in the municipal court. The defendant Lorenze appeared in the action. By agreement of the parties appearing, the case was adjourned as follows: First, from December 2d to December 11th; on December 11th, without waiting an hour, the case was again adjourned to the 14th day of December, 1899, at 1 o'clock in the afternoon, in the municipal court room. On this day, by consent of those appearing for the parties, it was adjourned to the same hour “at this office” on December 18th. On December 18th the plaintiff and defendant Lorenze appeared with their attorneys. Upon the proofs the court awarded plaintiff judgment for $56.36 damages and $8.30 costs against both defendants. On January 8, 1900, a transcript of this judgment was filed in the office of the clerk of the circuit court for Rock county. It also appears that the note was originally given by the defendant Malone to the defendant Lorenze without any consideration, and that manual tradition was made of the writing under a parol agreement to the effect that Lorenze should negotiate to secure Malone a life insurance policy, which was to be submitted to Malone for his acceptance. Lorenze has not submitted a policy which has been accepted. After plaintiff obtained judgment against defendants, he received payment thereon in September, 1902, in full of all his rights and interest therein from the defendant Lorenze, and made an assignment thereof to the defendant Lorenze in consideration of receiving such payment. This assignment has been lost, and plaintiff, at the request of Lorenze and Edward H. Ryan, made an assignment to said Ryan, who claims to have purchased whatever interest Lorenze obtained and holds under the purchase and assignment of the judgment from Lorenze. The assignment by the plaintiff to Ryan was made September 28, 1903, and was filed with the clerk of the circuit court at once. On this same day execution was applied for by said Ryan, as assignee of the judgment, and issued out of the circuit court. Under this execution the sheriff of Rock county has levied on defendant Malone's real estate, and now threatens to sell the same in satisfaction thereof. Defendant Malone, proceeding by petition setting forth these facts, prayed that the execution be recalled, and that the sheriff and said Ryan be restrained from proceeding further in the matter, and that the docketing of the judgment be canceled. Upon hearing on an order to show cause in the proceedings commenced by this petition affidavits were filed establishing the facts as above stated, whereon the court ruled that no cause existed for restraining proceedings under the execution.J. J. Cunningham, for appellant.
Edward H. Ryan (Pierce & Fischer, of counsel), for respondent.
SIEBECKER, J. (after stating the facts).
Error is alleged upon the ground that the municipal court lost jurisdiction of the case by adjournment without sufficient cause being shown, and that defendant Malone's consent was not obtained to such an adjournment, as required by sections 3630, 3631, Rev. St. 1898; and also because a second adjournment was ordered without waiting an hour from the time to which the cause had been adjourned before ordering another adjournment, the parties not having appeared when the adjournment was ordered, as required by section 3633, Rev. St. 1898. These provisions regulate the practice and procedure in trials of cases in courts of justices of the peace. The question is, do they apply to the municipal court for Rock county? This court exists as re-established by chapter 197, p. 226, Laws 1881, which provides that: It also has jurisdiction to try appeals in civil and criminal cases from justices' courts. It is also enacted that the general provisions of the law and the rules of practice applicable to circuit courts and actions and proceedings therein shall, so far as appropriate, apply to the municipal court, “and its rules of practice and proceedings shall conform as nearly as practicable to the rules and practice of circuit courts.” It is true some provisions of the...
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Ryan v. Malone
...the order thereon the respondent appealed to this court, and the decision of this court upon that appeal will be found in Snyder v. Malone, 124 Wis. 114, 102 N. W. 354, where the facts and claims upon which the respondent bases his petition are stated, and where the order of the circuit cou......
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