Hackett v. Bonnell

By the Court, Dixon, C. J. Whether the husband, Hackett, is a competent witness, depends on whether he is properly joined as plaintiff in the action. If. he is a proper party, his testimony should be received, Barnes vs. Martin, 15 Wis., 240. If he was improperly joined, the objection appears on the face of the complaint, and it not having been taken by demurrer, it is waived. R. S., chap. 125, sec. 5, sub. 4, and sec. 9; Ingraham vs. Baldwin, 12 Barb., 9. Whether he should have been joined in the first instance, under the provisions of the code (R. S., chap. 122, sec. 15,) is a vexed question in New York, the proper decision of which involves many important considerations. Some of the courts hold that it is op [477] tional with the wife to sue alone or to join her husband in actions which concern her separate property. Van Buren vs. Cockburn, 2 Coms., 63; Rasher vs. Morris, 9 How. Pr. R., 266; Woods vs. Thompson, 11 id., 184; Howland vs. Paper Mill Co., 8 id., 505; Ingraham vs. Baldwin, supra; others that he cannot be joined in such actions. Smith vs. Kearney, 9 How. Pr. R., 466; Ackerly vs. Tarbox, 29 Barb., 512. Upon this question we express no opinion, since, by the action of the defendants, the plaintiff’s husband is now to be deemed a proper party. Whether the record of the proceedings in the circuit court of the state of Illinois should have been received or excluded, is a very simple question, according to the offer which was made. If offered under the law of congress, (1 stat. at large, p. 122, quoted in 1 Greenl., Ev., sec. 504,) the certificate of the judge that the attestation of the clerk is in due form, is necessary. If under the statute of this state, sec. 61 of chap. 137, R. S., then the certificate of the clerk must conform to the provisions of section 71, of the same chapter, and it must appear that he has compared the copy with the original, and that it is a correct transcript therefrom. As the case is silent upon the judge’s certificate, we must presume that the record was offered under our statute, and it was not therefore, so authenticated as to make it admissible. The former action for the possession of the same property was properly discontinued. All costs had been paid, and the order entered in term must-be presumed to have been made by the judge in open court. In such case, the signature of the judge, or of a commissioner, is unnecessary. The learned judge was clearly wrong in holding that no second action for the recovery of personal property can be maintained, and that the former suit was a bar. How this impression gained ground, we are at a loss to discover. There is nothing in the statute to warrant the inference, and we are referred to no authority upon the subject. It may possibly have [478] sprung from a recollection of the statute of 1849, which prohibited a second suit of replevin for the same cause, but such is no longer the law. Nor, is there anything in the objection that the possession of the defendant Bonnell is qualified by the undertaking which he gave for the return of the property in the former action. The undertaking was conditioned for the delivery of the p :op-erty to the sheriff, if such delivery should be adjudged, and for the payment to him of such sum as might, for any cause be recovered against the defendant. R. S., chap. 128, sec. 6, No delivery was adjudged, and the action was discontinued at the costs of the plaintiffs. The undertaking is therefore, func-tus officio, and of no force whatsoever; and the possession of Bonnell just what it was before the action was brought, that is, a possession in his own right. For the same reason, also, no order for a return of the property was required upon judgment of discontinuance. It was already in the defendants’ possession. Judgment reversed, and a new trial awarded.