Oliver v. Town , 28 Wis. 328 ( 1871 )

Cole, J.

A motion was made to strike out the bill of exceptions, which motion was submitted with the cause itself upon the argument. The ground of the motion is, that the bill was not settled within sixty days from the service of written notice of the entry of judgment. The evidence tending to .show that such written notice was served by the counsel for the defendants, while it renders it highly probable that such was the fact, yet is not entirely satisfactory and conclusive upon that point. It is to be observed that Mr. Babcock, whose affidavit is mainly relied upon to show the service of the written notice, nowhere positively swears that he made such service. He does, however, state the method of doing business by the firm of which he is a member, and testifies to the fact that they keep a docket in which is entered the title of each cause in which they are employed as attorneys, and that under the title of each action is noted the time when any paper or process is served or received by them. And it appears that under the title of this cause, and in its regular order, is an entry upon this docket to the effect that written notice of the entry of judgment was-served on Mr. Bragg, the attorney for the plaintiff, on the 28th of December, 1868. But Mr. Bragg, on the other hand, swears quite positively that no written notice was ever served upon him personally, or at his residence, and that none was ever to his knowledge left at his office where he saw it, although he “kept a constant watch for the same.” It is true, this is in its character negative testimony, and would not overcome a positive statement that the notice was served at the office, had such a statement been made by Mr. Babcock in his affidavit. But as it is, the question is left in some doubt, and we have therefore concluded to deny the motion to strike out the bill. For it is not going too far to require of a party seeking to strike out a bill of exceptions because not settled within the time allowed by statute, that he should establish the fact that it was settled out of time by clear and satisfactory evidence. And this brings us to a consideration of the cause upon the merits.

The plaintiff based his right to recover the value of the property which was taken by the defendants, upon the chattel mortgage executed by Frank S. Oliver to him, dated March 26, 1868. The defendants justified taking the property under a writ of attachment issued against the mortgagor in favor of the defendant Wctisort, who was his creditor. The plaintiff objected, on the trial, to the admission in evidence of the affidavit upon which the writ of attachment issued, because it showed no positive indebtedness on the part of Frank S. Oliver, the defendant therein named, to the plaintiff, and was therefore void for uncertainty. The affidavit stated that the defendant was “indebted to the plaintiff in the sum of $100, as near as may be, over and above all legal set-offs, and that the same is due upon express contract.” This was following literally the language of the statute in stating the indebtedness (sec. 99, chap. 120, R. S.), and we think was sufficient. It was equivalent to a positive and distinct statement that the defendant was indebted in the sum of $100, over and above all legal set-offs, and that the same was due upon express contract. The language used is not fairly susceptible of any other interpretation, and this is its natural and most obvious meaning. And to say that the qualifying phrase “ asnear as may he ” leaves the matter in doubt whether anything was actually due the plaintiff from the defendant, and if so, the true amount, is quite too great a refinement upon language to be adopted. Again it is insisted that the evidence shows that the defendants were guilty of an abuse of the process of court, by attaching upon the writ property of the value of $1,200, to satisfy a claim of $100, and therefore were trespassers ah initio. It is, however, a sufficient answer to this argument to say that it does not appear from the evidence what the value of the property taken upon the writ was. Frank S. Oliver testified that he made an invoice of the goods taken by the sheriff which was covered by the mortgage, and that they amounted to about $1,200. But the bill of exceptions does not purport to contain all the testimony given on the trial. And further, it is stated in the bill that the defendants introduced “ other testimony tending to greatly reduce the value of the goods taken by the sheriff.” The record does not show that any question of this kind was raised in the court below, tbat tbe defendants bad been guilty of an abuse of the process of the court in making an excessive levy. In this state of the record, then, we cannot say that the defendants were trespassers ah initio, and that the attachment afforded no justification or warrant for seizing the property.

It is very obvious that the defense relied on in the court below to defeat the action was, that the. chattel mortgage was fraudulent and void as to the creditors of the mortgagor. The evidence bearing upon the question as to the validity of the mortgage seems to have been submitted to the jury by the circuit court in a very full and lucid charge as to the law applicable to the case. If the charge is open to any criticism, it is that in one or two particulars it is possibly more favorable to the plaintiff than the authorities would warrant. But even if there were any error of this Mnd in the charge — and we do not wish to be understood as saying that there is — it would furnish no ground for a reversal of the judgment. The plaintiff insists that the instruction asked by him to the effect that, the mortgagee being in possession under the mortgage when the goods were seized on the writ of attachment, if the mortgage was executed in good faith for a valid subsisting debt, then the defendants were liable for the goods taken. This is the substance of the instruction. The circuit court instructed the jury, among other things, that if the mortgage was for an honest debt, and the plaintiff took possession of the stock primarily to secure his debt, and without any fraudulent intent, then such taking possession made the mortgage valid against a subsequent attaching creditor. It was claimed, on the one hand, that the mortgage was void upon its face, and on the other that possession by the mortgagee for a subsisting debt rendered the mortgage valid as against the creditors of the mortgagor. The court made the intent with which the mortgagee took possession an element in determining his right to hold the property under the mortgage, and as affecting the validity of the instrument. We think there was nothing in this of which the plaintiff could complain.

By the Court.— The judgment of the circuit court is affirmed.