Spencer v. Osberg

• Decision Date: 18 February 1913
• Citation: Spencer v. Osberg, 152 Wis. 399, 140 N.W. 67 (Wis. 1913)
• Parties: SPENCER v. OSBERG.
• Court: Wisconsin Supreme Court

152 Wis. 399

140 N.W. 67

SPENCER

v.OSBERG.

Supreme Court of Wisconsin.

Feb. 18, 1913.

Appeal from Circuit Court, Washburn County; Frank A. Ross, Judge.

Action by Ida M. Spencer against Oscar Osberg. Judgment for plaintiff, and defendant appeals. Reversed.

The verified complaint in this action alleges that on January 6, 1911, the defendant seized and took into his possession certain personal property belonging to the plaintiff, of the value of $1,023; that at the time the plaintiff was indebted to the defendant in the sum of $290.25; and that there was then due the plaintiff the difference between the value of the property converted and the sum due the defendant, $732.75.

For a second cause of action it is alleged that at the time the defendant seized and took into his possession the property mentioned in the first cause of action the defendant claimed to have a chattel mortgage upon the same, but that he took and converted to his own use other personal property belonging to the plaintiff, and not embraced in the mortgage, of the alleged value of $52.

For a third cause of action it is alleged that on October 6, 1909, the plaintiff purchased from the defendant certain personal property, together with the lease of a certain livery barn in the city of New Auburn, and the right of a lease of the livery barn for a number of years. It is alleged that the defendant claimed that the rent for the livery barn was paid for two months from the time of sale, and that the defendant promised to assign and deliver to the plaintiff the lease embraced in the sale. It is further alleged that the rent was not paid for the two months; that the plaintiff was compelled to pay $40 as the rent for these two months, and that the defendant has neglected and refused to make and deliver an assignment of the lease; that the plaintiff, at the end of two months, was compelled to vacate the barn; that she was unable to lease another barn in the city of New Auburn; and that the plaintiff, by reason of defendant's failure to assign the lease, suffered damages in the sum of $500. Damages are demanded in the aggregate of these various sums, amounting to $1,324.75, and for her costs and disbursements.

It appears that the summons and complaint were filed on May 1, 1911; that no defense was made; and that judgment on defendant's default was awarded and signed by the clerk of the circuit court for Washburn county on that day. It also appears that the defendant had notice of the entry of the judgment on May 6, 1911.

On June 6, 1911, on an order to show cause, which had been served, the defendant moved to vacate the judgment. This motion was denied, on the ground that the defendant, by not specifying that he appeared specially in moving to vacate the judgment, had appeared generally in the action, and thus waived the alleged irregularity.

On February 21, 1912, defendant made another motion to vacate the judgment and to be allowed to defend, which motion was based on a proposed verified answer and affidavits. This motion was denied, on the ground that the motion had been unreasonably delayed. The answer and affidavits, on which this motion for vacating the judgment and for allowing the defendant to appear and defend were based, show that the summons served was not signed; that no copy of the complaint was served with the summons; that no place was specified where a copy of the complaint could be procured; that the summons was served on the defendant while he was in attendance on court in Washburn county, of which county he was not a resident, in an action wherein he was plaintiff, and the plaintiff was defendant; that that action embraced the subject of the present action; that the defendant had taken into his possession the property which is mentioned in the first cause of action under a chattel mortgage mentioned in the second cause of action; that he took only such property as was covered by the mortgage; that the value of the property was fixed by the jury in that action, wherein he was the...