Wilson v. Johnson

• Decision Date: 24 September 1889
• Citation: 74 Wis. 337,43 N.W. 148
• Parties: WILSON v. JOHNSON.
• Court: Wisconsin Supreme Court

74 Wis. 337

43 N.W. 148

WILSON

v.JOHNSON.

Supreme Court of Wisconsin.

Sept. 24, 1889.

Appeal from circuit court, Kenosha county; JOHN B. WINSLOW, Judge.

The complaint, briefly stated, alleges that on or before January 18, 1886, a certain mare of the defendant was stolen from his premises in the city of Kenosha; that about that date he learned that his mare was at Valparaiso, in the state of Indiana, and applied to the plaintiff to go with him to the latter place, and assist him in recovering her, and agreed with the plaintiff that if he would do so, and pay his own and the defendant's expenses in going there, and the expense of obtaining possession of the mare, including the payment of any charges thereon, the plaintiff might retain the mare in his possession, if recovered, as security for all sums of money so advanced; that the plaintiff entered into and performed the agreement on his part, advanced the necessary money, (stating the amount thereof,) recovered the mare, and took her to Kenosha, and has ever since held possession, claiming a lien on her for such advances and the cost of her food and keeping; that the defendant, though often requested, has refused and neglected to pay said advances and the expense of keeping the mare as he agreed to do; and that the mare is worth $225. Judgment is demanded for the amount of such advances and expenses, with interest, and that the plaintiff “be adjudged to have a lien upon said mare for said amount, and that he may enforce the same according to law,” and for general relief. The defendant answered, denying specifically nearly all of the material allegations of the complaint. The answer amounts, substantially,to a general denial. He also interposed a counter-claim for loss of the use of his mare while in the possession of the plaintiff. When the cause was called for trial, the defendant demanded that it might be tried by a jury, but the demand was denied, and the court proceeded to try the same as an equitable action, without a jury. After the trial the court filed its findings of fact, which are equivalent to a finding that all the material allegations of the complaint, as above stated, are true. The amount of plaintiff's lien on the mare was found to be $225.25. The conclusions of law deduced by the court from such facts are to the effect that the plaintiff has a lien upon the mare, and is entitled to a judgment for the above sum and costs, which judgment should declare his lien on the mare therefor, and should direct that she be sold, and the proceeds of the sale be first applied to the payment of the plaintiff's lien and costs, the surplus, if any, to be paid into court for the use of the defendant. Directions for giving notice of the sale are also given. Judgment was thereupon ordered and entered in accordance with such conclusions of law. After the entry of judgment, and at the same term, the defendant moved the court to vacate the judgment, and for a new trial, on the ground of newly-discovered evidence. The nature of this evidence is stated in the opinion. The court denied the motion. The defendant appeals to this court from the judgment and from the order denying the motion for a new trial.

Howard Van Wyck, for appellant.

James Cavanagh, for respondent.

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

I. Although there is considerable conflict in the testimony, a careful perusal of it satisfies us that it sustains the findings of fact; at least there is no such clear preponderance of...