Du Bay v. Uline

[590] By the Court, Smith, J. After a careful inspection of che record in this case, we are compelled to reverse the judgment of the court below. The declaration contains one special count for work done on the mill to be paid for in specific articles, and also the common counts for work and labor, goods sold, and also the money counts. It is a matter of doubt whether the special count is good or not, but it is unnecessary to consider the point as it would be impossible to sustain the judgment even if it were good. In the first place the record shows no issue. There is no plea to the declaration, nor is there any default entered, or judgment interlocutory. The declaration is filed as of the August term, 1853, and at the November term, 1853, appears the following entry, to wit “ Now at this day comes the parties in this cause by their respective attorneys, and declare themselves ready for trial. Whereupon, upon hearing the proofs and allegations of the parties, it is considered by the court now here, that the said plaintiff recover of the said defendant for his damages by him sustained by reason of the non-performance of the promises and undertakings of the said defendant, the sum of four hundred and seventy-five dollars, and also the sum of thirty-seven dollars and fifty-seven cents for his costs by him about his said suit expended, and that the same be a lien upon the saw mill and premises described in the plaintiff’s petition for a lien filed in this cause, to the extent of the interest of the said defendant therein.” Although among the papers there is a petition for lien, filed March 29,1852, yet there is no reference made to the petition in the declaration, nor any thing to connect the suit with the claim of lien. Without this there can be no judgment of lien or order of sale of the premises to satisfy the same. Again, were it possible to dispense with the issue, the default or the judgment interlocutory, we are not informed how the damages were assessed, whether a writ of inquiry or jury was waived. But even if this could be overlooked, there is [591] a fatal error in the judgment. If we could hold that the first or special count might relate to the claim of lien, and was good in substance, yet most certainly the money counts can have no relation to such lien, and the judgment of the court, as well as its finding of damages, is upon all the counts of the declaration generally. A verdict upon a count for goods sold, and the common money counts could not warrant a judgment of lien, and a judgment so rendered must necessarily he reversed. Again the form of the judgment itself is not in conformity with the statute. See Dean vs. Wheeler, 2 Wis., 224; Dewey vs. Fifield, Id. 73; Dobbs vs. Green, Id. 228. It is unnecessary to pursue further the consideration of this case. If we have not pointed out all the errors which the record discloses, for those already mentioned the judgment must he reversed. Judgment reversed with costs and cause remanded.