York v. Orton , 1885 Wisc. LEXIS 107 ( 1885 )

Lyon, J.

The facts set forth in the foregoing statement of the case were found’ substantially by the circuit court, and the evidence sustains the findings. We think there was an effectual substitution of those partners in the late firm of Crawford, Mills & Co. who succeeded to the assets of that firm (of whom Gabriel Mills was one), as the debtors of the plaintiff for the accrued rent, in place of John L. Crawford, the original debtor, who was released from liability therefor. In other words, there was an effectual no-vation, by which Gabriel Mills and his associates became liable to the plaintiff for such rent in place of John L. Crawford. True, the credit was erroneously entered by Milligan on the books of the latter firm in favor of Chandler & York, but it is not perceived why the plaintiff, who alone was entitled thereto, may not avail himself of the credit. To allow him to do so is no injustice to the substituted debtors, because Chandler claims no interest in the rent, and Crawford, Mills & Co. were indebted at that time to Chandler & York. Hence they may as well account to the plaintiff for the rent as to Chandler & York. We conclude that the plaintiff established his claim against the estate of Gabriel Mills, to the amount of $800.

It was maintained by counsel for the defendant that, because the plaintiff has not appealed from the award of the commissioners, he cannot recover in the circuit court any greater sum than the commissioners awarded him, which was $308. Y0. We. do not concur in this proposition. The appeal of the defendant alone necessitated a trial de novo in the circuit court of the whole controversy. The award of the commissioners thereupon ceased to be of any importance, and the parties stood in that court as they stood before the commissioners. Had the award- been admitted. in evidence to show the sum awarded by the commissioners, it would probably have been error. Central Bank of Wis. v. St. John, 17 Wis. 157. The matter stood in the circuit court precisely as a case appealed from a justice of the peace where a trial de novo is required by law. Undoubtedly, in such a case, the judgment of the circuit court is unaffected by the judgment of the justice or the question as to which party appeals. It goes upon the merits, the same as though the case had been brought originally in the circuit court. Such is the rule in this and like cases.

Counsel for defendant based an argument in support of his position on sec. 4037, E. S., which provides that the eir-cuit court may, on appeal from an order of the county court, reverse or affirm the same, in whole or in part, etc. Many orders of the county court are of a character that only admits of a reversal or affirmance on appeal. Others, like the award here, may require something more than a mere reversal or affirmance, either in whole or in part. The same section gives the circuit court ample authority to make the proper order or render the proper judgment in such cases, without regard to the amount awarded by the commissioners.

"We conclude that the circuit court rendered the proper judgment, and hence that it should not Be disturbed.

By the Gourt.— Judgment affirmed.