Union Nat. Bank of Chi. v. Cross

• Decision Date: 23 June 1898
• Citation: 75 N.W. 992,100 Wis. 174
• Parties: UNION NAT. BANK OF CHICAGO v. CROSS ET AL.
• Court: Wisconsin Supreme Court

100 Wis. 174

75 N.W. 992

UNION NAT. BANK OF CHICAGO

v.CROSS ET AL.

Supreme Court of Wisconsin.

June 23, 1898.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by the Union National Bank of Chicago against Clarence L. Cross and A. S. Badger. There was a judgment for defendants, and plaintiff appeals. Reversed.

This is an action to recover upon promissory notes aggregating over $31,000. The answer admitted the execution of the notes, but alleged that the time for the payment of the same had been extended for a valuable consideration. The defendants were manufacturers of lumber at two small railway stations, called Hawthorne and Holmes, in Douglas county, Wis. At the time of the commencement of the action the plaintiff made affidavit for attachment on the ground that the defendants were nonresidents of the state, and the sheriff seized upon the writ a large amount of personal property consisting of sawmills and other buildings upon leased land, machinery, lumber, slabs, logs, horses, camp outfits, merchandise, etc., amounting to more than $30,000 in value by the inventory, and comprising practically the entire plant of the defendants at each of their sawmills. After service of the answer, a motion was made in due time to cause the answer to be made more definite in certain particulars, which motion was overruled, and the plaintiff excepted. The case was tried in November, 1896, the question of damages upon the attachment being tried, against the plaintiff's objection, with the main issue. A special verdict was rendered by the jury as follows: “(1) Did plaintiff extend the time of payment of the notes upon which this action is brought? A. Yes. (2) If you answer ‘Yes' to question numbered one, then was the time of payment extended up to and including November 20, 1895? A. Yes. (3) What sum of money will compensate defendants for the damages they have sustained by reason of the attachment proceedings in this case? A. $18,550.” Upon this verdict, judgment for the defendants for the amount of damages found by the jury was rendered, and the plaintiff appeals.Dickinson, Kennedy & Graham, for appellant.

Turner, Bloodgood & Kemper and Ross, Dwyer & Hanitch, for respondents.

WINSLOW, J. (after stating the facts).

The points made by the appellant will be considered in their natural order.

1. The action was upon promissory notes. The defense was that the time of payment had been extended. The allegation of the answer setting up the extension was as follows: “These defendants, further answering said complaint, allege that, a short time prior to the commencement of this action, the said plaintiff, for a valuable consideration paid to it by the said defendants, did extend the time of payment on each of the said notes, and that there was nothing due to said plaintiff upon any of said notes at the time of the commencement of this action, for the reason that the term of credit extended to the said defendants upon said note had not expired at the time of the commencement of the said action.” Timely motion was made by the plaintiff to require the answer to be made more definite and certain by stating whether the agreement of extension was in writing, what the consideration for the agreement was, and when it was paid, but the motion was overruled. We think the motion should have been granted. The plaintiff was clearly entitled to know the nature and terms of the alleged agreement of extension, in order that it might be ready to meet the proof offered upon the trial. Ready v. Sommer, 37 Wis. 265. As this judgment must be reversed for other reasons affecting more closely the merits of the litigation, it is not necessary to decide whether the denial of the motion alone would necessarily require reversal of the judgment, but it is sufficient to say that the motion should have been granted.

2. A question is raised as to the impaneling of the jury. The case was tried in November, 1896, at an adjourned session of the August term. At the time of the adjournment one juror only had been retained. When court met in November this case was called, and the defendants claimed that there had been an oral stipulation that the coroner should summon the jury, but this was denied by the plaintiff's attorneys; whereupon the court asked them if they had any personal objection to the coroner summoning the jury except that it was out of order, to which they replied, “No, sir; no personal reason.” Thereupon the court made an order reciting that the sheriff had such interest in the case that he was an improper person to select jurors, and ordered that a special venire issue to the coroner, and to this order plaintiff excepted. A special venire was then issued to the coroner, directing him to summon 20 good and lawful men to serve as petit jurors for the term. The coroner obeyed the command, and summoned 20 jurors, and from the panel so obtained a jury was called for the case, and, after several challenges, was sworn and acted without further objection. It is now claimed by the plaintiff that the deficiency of jurors should have been supplied by drawing the names from the box containing the names of petit jurors for the year, under Rev. St. § 2537, as amended by chapter 126, Laws 1895, instead of obtaining them in the manner adopted. Doubtless the position so taken is right The statutes governing the subject (Rev. St §§ 2537-2539) very clearly provide two different methods of obtaining additional jurors during the term to meet two different contingencies: (1) When there is an entire absence of jurors, or when the regular panel is deficient in numbers, then the deficiency is to be supplied by drawing names from the box containing the names of petit jurors for the year, and these jurymen, when summoned, become jurors for the remainder of the term; (2) when, however, it is not necessary to fill up the panel of jurors for the term, but when on account of challenges, or perhaps on account of one or two trial juries being engaged in the jury room, it becomes impossible to obtain enough jurors from the panel in attendance to try a given cause, then the court may require an officer to call from the bystanders or summon from the county at large enough talesmen to complete the panel for such trial, and these men, when summoned and accepted, become jurymen for that case only, and not for the term. In the present case there was a deficiency of jurors for the term, and the attempt was made to partially fill the panel, and so the venire states that the 20 men are to be summoned to serve as petit jurors at the August term, and hence the case fell within the first contingency above named, and the names should have been drawn from the box. However, no such objection was at any time made by the plaintiff. The only objection made seems to have been an objection to the coroner's summoning the jury instead of the sheriff; certainly the attention of the court was in no way called to the claim now made. Section 2881, Rev. St., provides that a verdict shall not be set aside for irregularity in summoning or impaneling the jury unless the party was injured by the irregularity, or unless the objection was made before the return of the verdict. There is nothing in the case to show that the plaintiff was injured by the method adopted in this case, and the objection was not made before the return of the verdict; hence the judgment cannot be reversed on this ground.

3. The answer contained no claim by the defendants for damages resulting from the attachment, nor was any written claim made therefor, but the defendants were allowed, against objection, to introduce evidence on the subject, in connection with the evidence on the main issue of extension of the time of credit, and both issues were thus tried together. It is claimed that this was erroneous, and that the claim should be made by pleading, so that the plaintiff may be apprised before trial of what he has to meet; or, if this be not necessary, then it is claimed that the question of damages should not be tried until the main issue has been settled by the jury. There is certainly much force in the argument in favor of the plaintiff's claim. It seems but fair that he should know before proceeding to trial on the main issue that he will be called upon also to meet a claim for damages, and it may well be that the introduction of a large mass of testimony on the question of damages would seriously interfere with a fair consideration by the jury of the question on the main issue. We have been referred to no decision settling the practice in such cases, nor does the statute lay down any fixed mode of procedure. The statute on the subject (section 2747, Sanb. & B. Ann. St.) says: “If on the trial of the action the jury find for the defendant or the plaintiff be nonsuited, they shall specially assess the damages sustained” by reason of the taking and detention of the property attached, etc. This language certainly does not indicate that a formal pleading is required, but rather that the plaintiff must be ready to meet a claim for damages when he goes to trial. Doubtless the procedure is designedly left to the sound discretion of the trial court, which is not subject to review except where it appears that the discretion has been abused, and we cannot say that such appears to be the case here. It seems proper to say, however, that, for reasons which must be apparent to all, the better practice would be to try the main issue first, and, if...