Bates v. Wilbur , 10 Wis. 415 ( 1860 )

By the Court,

Dixon, C. J.

Many of the questions discussed in this case, by the appellant’s attorney, were directly passed upon and settled by this court, in the case of Cotton et al. vs. Marsh et al., 3 Wis., 221. The only exceptions not determined by that case, are those which go to the want of aaffidavit renewing the mortgage, before the expiration of the year, and to the form and sufficiency of the finding. The objection to the chattel mortgage being received in evidence, without such affidavit, was properly overruled. The rights of the parties must he determined by the facts, as they stood at the time the cause of action accrued. The property having been taken from the mortgagee, and his rights remaining merely in action, it was not necessary for the purpose of enabling him to maintain the suit, that such affidavit should be made. His cause of action against the defendant, if he had any, had .already accrued, and was vested in him, by virtue of what had transpired whilst the mortgage was in full force. His subsequent conduct, unless it amounted to a release, was no defense.

The finding, however, is fatally defective, and the judgment cannot be supported by it. A jury having been waived, the action was tried by the court. In such a case, the finding must be as broad as the verdict would have been. Sections 26 and 21, of chapter 119, R. S. 1849, under which this action was tried, prescribed that if, upon the trial of a cause, the verdict was in favor of the plaintiff, the jury should assess the damages which he had sustained for the unjust taking or detention of the property, as well as the value of the goods and chattels specified in the declaration. In this case, no damages whatever were assessed, but an allowance of five per cent., by way of indemnity, is given. The right of possession which the action was brought to try, is not determined at all. A right of possession in the defendant might well exist, notwithstanding all the facts stated. .

The judgment must be reversed, and a new trial awarded.