Wiesner v. Kosiedowski

• Citation: 193 N.W. 374,182 Wis. 521
• Parties: WIESNER ET AL. v. KOSIEDOWSKI ET AL.
• Decision Date: 01 May 1923
• Court: United States State Supreme Court of Wisconsin

182 Wis. 521

193 N.W. 374

WIESNER ET AL.

v.KOSIEDOWSKI ET AL.

Supreme Court of Wisconsin.

May 1, 1923.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Suit by John Wiesner and another against Peter Kosiedowski and another. Judgment for plaintiffs, and defendants appeal. Reversed, and remanded for new trial.

Foreclosure. This action was commenced to foreclose a real estate mortgage in the sum of $2,000. The mortgage purports to have been executed on the 5th day of March, 1913, by Franziska Worzala, on certain property in the twenty-first ward of the city of Milwaukee. The note accompanying the mortgage was for the sum of $2,000, with interest at the rate of 5 per cent. per annum, due three years after its execution. The complaint was in the usual form, the plaintiffs however, alleging that a certain release of this mortgage, which is of record in the office of the register of deeds for Milwaukee county, and which purports to have been executed by the plaintiffs on the 2d day of May, 1917, was a forgery, and ask that the release be set aside and that the mortgage be foreclosed. The defendants, who were grantees of Franziska Worzala, the mortgagor, denied that the note and mortgage were executed by Franziska Worzala, alleged that the same were forged, and asked by way of counterclaim that the note and mortgage be canceled and adjudged to be of no force or effect.

The trial court found in favor of the plaintiffs, set aside the purported release, and a judgment of foreclosure was entered, from which the defendants appeal.E. G. Rahr and H. O. Wolfe, both of Milwaukee, for appellants.

Kaumheimer & Kenney, of Milwaukee, for respondents.

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

Upon the contested questions the court found as follows:

“That the plaintiffs herein have, since the time they received the note and mortgage referred to herein, kept the same in their control and in their possession, up to the middle of May, 1919, at which time the plaintiffs turned the said mortgage over to their attorneys for the purpose of commencing suit for the foreclosure of said mortgage, and that, between said times referred to herein, no persons, other than the plaintiffs, had control or possession of the said note or said mortgage, referred to in the plaintiffs' complaint. That on or about the 17th day of February, 1919, the plaintiffs discovered that there was a record in the office of the register of deeds for the county of Milwaukee, a purported release and satisfaction of said mortgage, which purported release and satisfaction was recorded on the 2d day of May, A. D. 1917, at 3:45 o'clock p. m., in volume 848 of Mortgages, p. 314, as instrument No. 905496. That such purported release and satisfaction referred to in the last paragraph was not in fact signed by John Wiesner, nor Emma Wiesner, nor by either of them; nor was it signed by any persons on behalf of either John Wiesner or Emma Wiesner, nor was the said purported assignment acknowledged by either John Wiesner or Emma Wiesner before Robert E. Domogalla, a notary, or before any other person; and that the signature of the plaintiffs on said assignment is a forgery and said release and satisfaction is therefore void and of no effect whatsoever; and that the plaintiffs have never released or received any interest in and to said note or mortgage from any person whatsoever.”

The court further found that the mortgage and note were in fact executed by Franziska Worzala, on the 5th day of March, A. D. 1913.

It is apparent from the record that one of two innocent parties must suffer by reason of the fraudulent misconduct of Robert B. Domogalla, who was a notary public and real estate broker in the city of Milwaukee at the time the note and mortgage in question were executed.

The first question which presents itself for solution is the relation of the plaintiffs and the deceased, Franziska Worzala, who died about six months prior to the commencement of this action, to Domogalla. It is claimed by the defendants that Domogalla was the plaintiffs' agent. The testimony of the plaintiff John Wiesner is that Domogalla had, prior to the 5th day of March, 1913, and on the 5th day of January, 1912, made a loan of $3,800 on certain property located on Fifth street in the city of Milwaukee. It further appears that on the 5th day of March, 1913, the witness went to the office of Domogalla; that he then had in his possession $2,000, in cash; that at that time there was shown to him the note and mortgage; that after examination thereof, he paid to Domogalla $2,000, took with him the note, mortgage, insurance policy, and abstract, and thereafter retained the same in his own possession,down to the time that the same were turned over to his attorneys for the purpose of commencing the present action.

[1] While the interest was paid through the office of Domogalla, there is no evidence to sustain the conclusion that he was the agent of the plaintiffs rather than the agent of Franziska Worzala, so far as the payment and collection of the interest were concerned. Even if it were held that he was the agent of the plaintiffs for the collection of the interest, the fact that they retained the note and mortgage in their possession at all times would rebut any inference of agency generally in regard to the transaction. Bartel v. Brown, 104 Wis. 493, 80 N. W. 801;Kohl v. Beach, 107 Wis. 409, 83 N. W. 657, 50 L. R. A. 600, 81 Am. St. Rep. 849.

[2] A number of assignments of error are predicated upon the refusal of the court to receive in evidence certain transactions between Franziska Worzala and Domogalla, relating to another loan made in 1918, upon the same premises, and also evidence tending to establish the fact that Domogalla had removed certain sheets from the abstract and substituted others. All evidence of this character was properly excluded by the trial court, for the reason that the plaintiffs were in no way concerned therewith, that they were in no way responsible for the conduct of Domogalla in his dealings with Franziska Worzala, and the fact that he had removed sheets from the abstract in 1918, or shortly prior thereto, could in no way tend to establish the fact that he had forged the note and mortgage made five years previously.

Upon the opening of the trial, the plaintiffs offered in evidence the mortgage given by Franziska Worzala to John Wiesner. The defendants objected to the reception of the mortgage in evidence, on the ground that the answer alleged that the signature was a forgery and that Mrs. Worzala could neither read nor write. The mortgage was received, subject to the objection. The note, of which the following is a copy:

“Mortgage Note.

$2,000.00 Milwaukee, Wis.,

March 5, A. D. 1913.

For value received, three years (3 yrs.) after date I promise to...