Evans v. Head , 7 Wis. 399 ( 1859 )

By the Court,

Cole J.

Upon a careful examination of the justice’s return, made to the writ of certiorari, we think it satisfactorily shows that the respondent, after the proofs were closed in the justice’s court, made an endorsement upon the note, so as to reduce the demand below fifteen dollars; and this, under the circumstances, and at that stage of the cause, he ought not to have been permitted to do. For whatever might have been his motive for making this voluntary endorsement, the practical effect of it was, to deprive the appellant of his right of appeal to the circuit court; when he could have a trial de novo, and have an opportunity of making out a good defence to the note, which he had vainly tried to establish on the trial before the justice. It very frequently happens, that a party in a justice’s court, owing to the shortness of the time allowed to prepare for trial, cannot, with the exercise of the utmost diligence, procure his witnesses or obtain the testimony necessary to render his defence successful and where upon appeal, he is able to protect his rights. Besides, he may upon the trial he taken by surprise, on account of the absence of some material witness, and knowing well from the nature of the demand that if judgment was rendered against him, it would be for a sufficient amount to give, under the statute, the right of appeal, he might let the case go by default. To permit then, a plaintiff, after the proofs are in, to reduce by credits, his claim, so as to take away the right of appeal, would be giving him an undue advantage over his adversary, and might work great injustice. It is said upon the brief of the respondent that a party ought not to complain because the judgment against him is too little. As a general proposition this may be so. And yet a small judgment may be a very unjust one. For illustration suppose, an appeal could have been taken in this case, and the appellant on the trial, in the circuit court, could have shown by competent evidence that the note which was the foundation of the respondent’s action, had been paid, while it belonged to A. P. Tymeson, and that it was transferred after it became due; then certainly it would be unjust to compel the plaintiff to pay any part of the note again. And because such a consequence might possibly follow, we think the respondent ought not to be permitted to make a fictitious indorsement which would reduce the demand so as to deprive the appellant of his appeal under the statute.

We express no opinion upon the other points-in the case.

For the reasons given we are of the opinion that the judgment of the circuit court affirming the judgment of the justice must be reversed, and the cause remanded to the circuit court, for further proceedings in accordance with this decision.