Swenson v. Wells

• Decision Date: 05 October 1909
• Citation: 122 N.W. 724,140 Wis. 316
• Parties: SWENSON v. WELLS.
• Court: Wisconsin Supreme Court

140 Wis. 316

122 N.W. 724

SWENSON

v.WELLS.

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Replevin by Albert P. Swenson against L. F. Wells. From a judgment abating the action for nonjoinder of plaintiffs, plaintiff appeals. Reversed, and remanded for further proceedings.

This is an action of replevin, brought to recover possession of an automobile. The complaint alleges that the appellant was the owner and entitled to possession of it; that it was of the value of $1,500; that defendant in July, 1908, pretended and claimed that plaintiff traded said car for 16 lots in Lone Rock, Wis.; that defendant fraudulently misrepresented the value of said lots; that defendant deeded said lots to one W. G. Walker; that plaintiff agreed to trade the automobile for lots, if after examination said lots were found to be as represented; that said lots were found not as represented; and that defendant took the automobile wrongfully and unlawfully from plaintiff. The complaint prays for the return of said property, or $1,500, its value, together with damages.

The answer purports to set up two defenses: First, one in abatement as follows: “(1) For a first defense the defendant alleges that the contract mentioned in the plaintiff's complaint was in writing and that a copy thereof is hereto attached and made part of this defense; that the said contract was made by the plaintiff, Albert P. Swenson, and one W. G. Walker, jointly, by and through one S. D. Burke, their duly authorized agent; that the said W. G. Walker is still living at Madison, in Dane county, Wis.” Second: An answer in bar, attached to which answer or second defense was a copy of an agreement purporting to have been made between the defendant and W. G. Walker and plaintiff. This contract set up an agreement between the defendant, party of the first part, and plaintiff and W. G. Walker, parties of the second part, which provided for the sale by the parties of the second part to the party of the first part of the automobile and the payment of $500 in cash in consideration of said lots referred to in the complaint. The contract contained other provisions ordinarily found in land contracts and not necessary to be stated here.

The court sent the case to the jury on the answer in abatement upon the issue as to whether or not the plaintiff was the sole owner, and the following question was submitted: “On July 14, 1908, was the plaintiff the sole owner of the automobile in question?” which question the jury answered, “No.” Upon this finding the court ordered the action abated, and judgment was entered accordingly, from which this appeal was taken.F. K. Shuttleworth, for appellant.

Thomas W. King (Grotophorst, Evans & Thomas, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

Considerable argument is made in this case...