Lee v. Dunlop , 15 Wis. 387 ( 1862 )

By theCourt,

Dixon, 0. J.

If, as claimed by the counsel for the present plaintiff in Todd vs. Lee, and other eases just decided, and as intimated in the opinion in those cases, the title of the goods and the leasehold interest in the premises in question vested at law in the plaintiff’s husband, that would seem to have been a conclusive answer to this action. The possession of the plaintiff would have been the possession of her husband, and all actions at law for injuries done to it, must have been prosecuted in his name. But no question of this kind was made on the trial below, and it is altogether probable that it cannot now be considered. (But see 18 Johns., 559, and 8 Cow., 661.) We do not, therefore, express any opinion upon it.

The exceptions on the part of the plaintiff are not before us for review, no appeal having been taken by her. Knox vs. Cleveland, 13 Wis., 245. The only question material to be considered is, as to the power of the county judge to make the order directing the sheriff to put the receiver in possession of the store and goods. The circuit judge held that he had no such power, excluded the order, and directed the jury to return a verdict for the plaintiff. Whether the order was authorized or not depends on the following provisions of the Revised Statutes: Chapter 129, section 15. “ Whenever in the exercise of its authority, a court shall have ordered the deposit, delivery or conveyance of money or other property, and the order is disobeyed, the court, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money or property, and deposit, deliver or convey it, in conformity with the directions of the court, or the court may pass title to real estate by its judgment, without conveyance, in like manner as may now be done by decree.” Chapter 140, section 28 : “Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” Section 29: “ An application for an order is a motion. Motions may be made to a judge out of court, except for a new trial on the merits. Motions must be made within the circuit in which the action is triable. Orders made out of court without notice may be made by any judge of the court, in any part of tbe state; and they may be made by any county judge or court commissioner of tbe county where tbe action is triable; except to stay proceedings after verdict.” By tbe 40tb section, tbe sheriff is required to serve or execute any summons, order or judgment which may be directed to him under tbe chapter.

It seems very plain to us that the county judge possessed tbe power. Tbe direction to tbe sheriff to take and deliver the money or property when tbe party has refused, is expressly named an order. Every direction of a court or judge, made or entered in writing and not included in a judgment, is declared to be an order. An application for an order is a motion. Motions, except for a new trial on tbe merits, may be made to a judge out of court. Orders made out of court, without notice, except to stay proceedings after verdict, may be made by any judge of tbe court, a county judge or court commissioner of tbe county where tbe action is triable. It is difficult to conceive bow it would have been possible to have conferred tbe authority by language more clear and explicit.

Tbe counsel for tbe plaintiff seem in some way to suppose that it was a proceeding to punish for tbe contempt involved in tbe disobedience of tbe first orders. We do not so understand it. Punishing tbe disobedience as for a contempt is one thing, and making tbe order requiring tbe sheriff to t^ke and deliver tbe property, quite another. One is a proceeding to vindicate tbe dignity and authority of tbe court; tbe other a measure designed for tbe more immediate relief of tbe party aggrieved. Both may be resorted to in proper cases, or either may be pursued without tbe other. It may therefore well be, that tbe county judge could take no step in tbe prosecution for tbe contempt, but that does not affect this question. Very great inconvenience as well as injustice would have ensued, if the power to make such orders bad been confined to tbe courts, which, in many places, are in session but a small part of tbe time.

Judgment reversed, and new trial ordered.