Town of Butternut v. O'Malley
| Decision Date | 10 November 1880 |
| Citation | 7 N.W. 246,50 Wis. 329 |
| Parties | THE TOWN OF BUTTERNUT v. O'MALLEY and another |
| Court | Wisconsin Supreme Court |
Argued October 12, 1880
APPEAL from the Circuit Court for Ashland County.
In January, 1879, this court reversed the judgment of the circuit court in this case so far as it awarded execution for $ 10,615.78 damages, and remanded the cause to the circuit court with directions to award execution in favor of the plaintiff for $ 8,780.67, with interest thereon from October 3, 1877. A motion by the defendants for a rehearing was denied on the 22d of April following. 46 Wis. 35-69. On the next day the board of supervisors of the town of La Pointe (which town was then plaintiff in the action), at a meeting thereof, caused the following minute to be entered upon their records: "We, the supervisors of the town of La Pointe find that John O'Malley should be credited with the following sums that are erroneously charged him on judgment:
On the 14th of May, 1879, the three supervisors and town clerk signed a paper addressed to the clerk of the circuit court for Ashland county, requesting him "to credit the sum of $ 3,303.09 on the judgment against Vaughn and O'Malley in said case as soon as the same should be perfected and filed."
On the 9th of June following, the circuit court, on the defendants' motion, directed its clerk to indorse and credit on the judgment said sum of $ 3,303.09 as of the 14th of May, 1879, and several other sums as of May 19, 1879. The grounds on which the sums last mentioned were to be credited need not be stated here. There was a further direction that a copy of the order be served on the sheriff of said county and that, upon receipt by him of the execution awarded in the action, he indorse thereon the aggregate amount of the sums above stated.
On the 12th of January, 1880, the town of Butternut was by an order of said court substituted for the town of La Pointe as plaintiff herein; and it appealed from the order of June 9 above stated.
Order reversed and cause remanded.
W. F. Vilas and J. H. Knight, for the appellant.
The cause was submitted for the respondents on the brief of J. J. Miles.
In making a settlement with O'Malley as town treasurer, the town board allowed him credit for certain sums which, they say, were erroneously charged him in the judgment which was rendered by this court. See 46 Wis. 35 at 35-69. The question whether he was entitled to credit for these items, was a matter litigated in the suit; and it was distinctly adjudged that they were not proper credits in his favor. It is true, there is no discussion of the question in the opinion delivered by Mr. Justice TAYLOR. What he says at the close of the opinion is, that, with the exception of the sum of $ 1,835.11, the evidence fully sustains the finding of the court below, in which these disputed items had been disallowed O'Malley. Now, notwithstanding this adjudication, the board ordered that there be deducted from the judgment $ 3,303.09, which they thought should be allowed him. It seems unnecessary to say that the town board exceeded their authority in thus attempting to discharge a part of the judgment, which belonged to the town. The board were surely not the owners of the judgment; it was the property of the town.
The learned counsel for the defendants says that the town board had full...
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