Zwickey v. Haney

Decision Date01 June 1885
Citation23 N.W. 577,63 Wis. 464
PartiesZWICKEY AND OTHERS v. HANEY AND OTHERS.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Grant county. See 22 N. W. REP. 133, 171.Wilson & Provis, for respondents.

A. C. Eastland, for appellants.

COLE, C. J.

The objection that there was no proper service of the summons and complaint in this action is clearly untenable. On the back of the summons, annexed to the complaint, we find an affidavit made by Henry Reed, in which he swears “that he served the within summons and complaint on the within defendants, James Haney and Santippia Haney, personally, by delivering to and leaving with each of said defendants--whom he knew to be the persons named in the within summons--a true copy of said summons and complaint, in the county of Richland, on the eighth day of December, A. D. 1881, at the village of Port Andrew, in said Richland county.” This fully shows the place, time, and manner of service; that Reed knew the persons served to be the defendants mentioned in the summons; and that he delivered to and left with each defendant a true copy of the summons and complaint. The proof of service meets all the requirements of the statute, (subdivision 2, § 2642,) and is sufficient. It is said Reed should have sworn that he made the service in the state of Wisconsin. This was not necessary. The court will take judicial notice that Richland county is in this state. It surely will not presume that service was made in some county of that name in another state, beyond the jurisdiction of the court. The summons and complaint are each entitled “M., G. & C. Zwickey,” as plaintiffs, and the judgment is entitled Michael Zwickey, George Zwickey, and Casper Zwickey,” plaintiffs. It is said the court should not presume that the persons named as plaintiffs in the summons and complaint are the ones named as plaintiffs in the judgment. In civil proceedings in this state it is a common practice to use initialsfor the entire Christian name, as our records will show. It may be the better practice--as we think it is--to use at least one entire Christian name in the entitling of causes, (Kellam v. Toms, 38 Wis. 601,) but as the general usage is not to do so, we must hold that an initial stands for the full Christian name. Consequently, we must assume, on this record, that M., G. & C. stand for Michael, George, and Casper.

The note was dated November 10, 1877, and was payable 10 years from date. The interest was made payable annually, and if such interest was not paid when due it became a part of the principal, and drew the same rate of interest as the principal. There was a further condition in the note that “on failure to pay interest when due the principal to become due.” There was confessedly a default in the payment of the interest; but it said nothing became due on the note because, by the terms of the contract, such interest, when due, was converted into principal, so that, in fact, nothing was really due on the note until the whole sum became due, 10 years from date. But this, we think, is not the proper construction of the contract. By the contract the mortgagees might avail themselves of the condition which made the principal due on failure to pay the interest, or they might let the note run on with compound interest. The complaint alleges that there was a failure to pay interest on the note for two years preceding the commencement of the action. By the condition above quoted the principal became due on failure to pay the interest.

The further objection is taken that the judgment is for one year's interest more than was demanded in the complaint, and it...

To continue reading

Request your trial
12 cases
  • Smith v. Kleynerman
    • United States
    • Wisconsin Supreme Court
    • 21 Marzo 2017
    ...set forth the line-up of the justices when a tie vote exists.ATTACHMENT AEqually Divided Court:Cases Naming Justices1. Zwickey v. Haney , 63 Wis. 464, 23 N.W. 577 (1885) (on appeal).2. Church of the Good Shepherd v. Racine Water Co. , 116 Wis. 11, 92 N.W. 436 (1902) (on appeal).3. Morey v. ......
  • Jahl v. Lewis
    • United States
    • Colorado Supreme Court
    • 6 Abril 1914
    ... ... In the absence of ... such demand, and of an answer, those allegations are ... inoperative. R. S. § 2886. The case of Zwickey v. Haney, 63 ... Wis. 464 [23 N.W. 577] is identical in principle with the ... present case. See, also, Edleman v. Kidd, 65 Wis. 25 [26 N.W ... ...
  • Wis. Nat'l Loan & Bldg. Ass'n v. Pride
    • United States
    • Wisconsin Supreme Court
    • 5 Junio 1908
    ...a deficiency judgment is erroneous, because in excess of the relief demanded in the complaint. Section 2886, St. 1898; Zwickey v. Haney, 63 Wis. 464, 23 N. W. 577;McKenzie v. Peck, 74 Wis. 208, 42 N. W. 247. It is suggested that no appeal lies therefrom, for the reason that the appellant is......
  • Doolittle v. Highlands Sheep Co.
    • United States
    • Wisconsin Supreme Court
    • 14 Octubre 1924
    ...It was so held where, on foreclosure of a mortgage, there was a judgment for deficiency not demanded in the complaint. Zwickey v. Haney, 63 Wis. 464, 23 N. W. 577;Wisconsin National Loan & Building Ass'n v. Pride, 136 Wis. 102, 116 N. W. 637. The rule declared in the statute was enforced in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT