Riess v. Delles

Cole, J. There is no bill of exceptions in this case, and the only question to be considered is, whether the judgment was warranted by the facts found by the circuit court. It is objected that the court did not find, as stated in the judgment, that the plaintiff was the absolute owner — or owner “in fee” — of the property, but did find that he held it merely to secure himself and others against a liability which he had incurred for the general owner, Krans, and for no other purpose. The presumption from the finding is, that the whole legal title, with the possession, was vested in the plaintiff conditionally, as mortgagee; and this was sufficient to enable him to maintain the action. Frisbee v. Langworthy, 11 Wis., 376; Welch v. Sackett, 12 id., 244. The words “m feeT in the connection in which they are used, are obviously without meaning. For, as against the defendant, the plaintiff is to be regarded as the absolute owner. Again, it is said that the finding was made in June, 1877. and is, that the plaintiff is the owner of the property, and is entitled to the possession thereof. It is insisted that this refers to the rights of the plaintiff when the action was tried, and not tt> his rights when the suit was commenced. This criticism seems to us without force. The finding relates to the [665] title and possession of plaintiff when the suit was commenced, and must be so construed. It is further objected, that, to entitle the plaintiff to a judgment for the value of the property, it must appear in the finding that he waived a return. In this case, the defendant gave the statutory undertaking and retained the property. The plaintiff had the option, under see. 39, ch. 132, Tay. Stats., to take judgment for the recovery of the possession of the property, or absolutely for its value. But we know of no provision that requires the plaintiff to exercise that option before the finding is made. "We suppose it is sufficient if he exercises his election when judgment is taken. Erom the recital, in his judgment already quoted, it will be seen that the plaintiff waived a delivery to him of the property, and asked a judgment for its value. This is all that was necessary for him to do, to show that he exercised the option given him by the statute. The court failed to find any damages for the taking of the property, but the judgment awards six cents. It is likewise objected that this was error. Concede that it was, still it is not such an error as will work reversal of the judgment. High v. Johnson, 28 Wis., 72. The maxim, de minimis, etc., applies. Hass v. Prescott, 38 Wis., 146. It follows from these views that the judgment of the circuit court must must be affirmed. By the Gourt. — So ordered. A motion by the appellants for a rehearing was denied.