Hoey v. Pierron

Oassoday, J. 1; An appeal will not lie from an interlocutory order regularly obtained, directing a retaxation of the costs which have been inserted in the judgment. Ernst v. “ The Brooklyn,” 24 Wis. 616; American B.-II, O. & S. M. Co. v. Gurnee, 38 Wis. 533; McHugh v. C. & N. W. R. Co. 41 Wis. 79. The manifest reason is that all such inter locutory rulings are finally concluded and determined by the judgment, and as such an order “involves the merits and necessarily affects the judgment,” it may be reviewed upon an appeal from the judgment itself whenever the errors complained of appear upon the record transmitted. Ibid.; R. S. sec. 3070. The case is distinguishable from that class where no such review can. be had on appeal from the judgment, as in Johnson v. Curtis, 51 Wis. 595. For these reasons the appeal from the order must be dismissed. 2. The exceptions taken to the order and retaxation are not available to the plaintiffs upon this appeal by the defendant from the judgment, for several reasons. They are hot incorporated in the bill of exceptions. If they were, still they would not be available to the plaintiffs, for the judgment returned in this record is for costs as originally taxed and not as subsequently modified; and the plaintiffs were in no way aggrieved by such original taxation. Should the record be remitted and amended *so as to include such exceptions and the modified judgment, still such exceptions would not be available to ' the plaintiffs; for, as frequently held by this court, although a respondent’s exceptions may be available in sustaining a judgment in his favor, yet they are not available to him for the purpose of reversing a portion of the judgment and obtaining a more favorable one. Maxwell v. Hartmann, 50 Wis. 660; Witt v. Trustees, 55 [268] Wis. 376; Jones v. Jones, 64 Wis. 301. The obvious remedy of the plaintiffs, if any, was to appeal fróm that portion of the judgment as modified which related to costs, with a bill of exceptions covering the matters of retaxation. For the benefit of the plaintiffs Ave would suggest that there seems to be no error in disallowing the taxation of the lengthy inventory of items in detail in no way descriptive of the identity of the property taken, nor of any other item of costs so disallowed. 3. On the trial, the plaintiffs offered certified copies of the chattel mortgages, and the defendant objected to their being received for any other purpose than to show the fact of filing. The objection was overruled, and the defendant excepted. This ruling is claimed to be in conflict with sec. 2318, R. S., which makes such copies evidence “only of the fact ” of filing, “ and of no other fact.” Such is manifestly the statute. But here the answer sets up each of the chattel mortgages in detail, and defendant offered one of them in evidence, which was the same in all respects as each of the others except as to parties and amounts. Under this state of facts, the objection, though otherwise well taken, is not available to the defendant here. Woodruff v. King, 47 Wis. 261. 4. It is claimed that two of the chattel mortgages were void in law, and should have been withdrawn from the jury, because each was taken for some forty odd dollars more than the jury found to be due at the time. The mere fact that each was given for a larger sum than was actually due such mortgagee at the time did not render the mortgage void in law. Barkow v. Sanger, 47 Wis. 500; Kalk v. Fielding, 50 Wis. 339; Carter v. Rewey, 62 Wis. 556. The “ question of fraudulent intent,” in all such cases, is “ deemed to be a question of fact, and not of law.” Sec. 2323, R. S. Here, the evidence explains how two of the mortgages came to be given for more than was due at the time, and [269] the other for less than was due at the time. The court would not have been justified in withdrawing the two mortgages from the jury upon the ground stated. The jury found the mortgages were accepted without either of the mortgagees knowing her mortgage exceeded the amount actually due. 5. "Was it error not to charge, as requested, that the burden of proof was upon Rosa G. Iloey, so far as she was concerned in the transactions with her husband? The first question of the special verdict as to the amount actually due to Rosa G. Iloey from her husband at the time of giving the mortgage was, as appears from a portion of the charge not excepted to, “answered by consent of counsel, $205.87.” That such amount was then due must therefore be regarded as a verity in the case. Buechel v. Buechel, 65 Wis. 536. As to whether the debtor made and executed that mortgage to his wife with the intent to hinder, delay, or defraud his creditors, the court charged the jury that the burden of proof was upon the defendant to show by clear and satisfactory evidence that it was made by him with such intent. This is assigned as error. Undoubtedly the burden of proving that the mortgage to the wife was given to secure an actual indebtedness to her from her husband for moneys or property advanced by her from her separate estate, or by some other person for her use, was upon the wife; but when that was proved and, in effect, admitted, it shifted such burden to the defendant. Semmens v. Walters, 55 Wis. 683, 684; Evans v. Rugee, 57 Wis. 624. Assuming that the defendant made a case within the provisions of sec. 2319, R. S., which, in such case, declares that“ the burden shall be upon the plaintiff to show that such mortgage was given in good faith, and to secure an actual indebtedness, and the amount thereof,” yet it has often been held, in effect, by this court that the establishment of such “actual indebtedness and the amount thereof ” satisfies the requirements of the section and shifts [270] the burden of proof to such defendant. James v. Van Duyn, 45 Wis. 518; Kalk v. Fielding, 50 Wis. 346, 347; Semmens v. Walters, 55 Wis. 683, 684; Evans v. Rugee, 57 Wis. 624; Shores v. Doherty, 65 Wis. 153. 6. It is claimed, in effect, that as the four mortgages were executed at the same time, they should be regarded as a part of the same transaction; and, as the $600 mortgage was void, they should all be regarded as fraudulent and void as to the mortgagor’s creditors. But the invalidity of the note and mortgage of $600 was bjr reason of their being given for an insufficient consideration, to wit, the wife’s services for her husband. That fact, of itself, did not establish any intent on the part of the mortgagor to hinder, delay, or defraud his creditors in giving either of the other mortgages; but the fact was, nevertheless, submitted to the jury, in connection with the other evidence, as a circumstance to be considered in determining whether any of such other mortgages were given with such intent. 7. It is urged that, as the four mortgages were given together, they must be regarded as a voluntary assignment, within the rule laid down in Winner v. Hoyt, 66 Wis. 227. The cases, however, are broadly distinguishable, as will readily be perceived by comparing the facts as stated in each. Here it is enough to say that there is no evidence that the mortgages covered all the property of the debtor. There was no assignment of the debtor’s accounts, assets, or things in action. Besides, the jury have negatived any intent on the part of the mortgagor to hinder, delay, or defraud his creditors, and also of any knowledge of such intent upon the part of either of the mortgagees, or any knowledge of facts sufficient to put an ordinarily cautious and intelligent person upon inquiry. If the special verdict is supported by the evidence, it takes the case entirely out of the rule in Winner v. Hoyt, supra. 8. It is said that the mortgages were void because they [271] did not disclose the actual transaction between the-parties, in that each mortgage recited, in effect, that the goods were in possession of said mortgagor and to remain in his possession until the same should be taken possession of by said mortgagee as therein provided, with the usual clause authorizing the mortgagee to take possession at any time he or she deemed the property or the debt insecure; and that, under such clause, the mortgagees did take possession, as stated. The mere fact-of taking such possession two days after the execution of the mortgages did not make the mortgages void, although it was a fact necessarily considered by the jury in rendering the special verdict. If that is sustained by. the evidence, then it is an end of that question. 9. It is strenuously urged, with much elaboration and ability, that the trial court should have set aside the verdict of the jury as perverse; and the failure to do so is assigned as error. After a very careful consideration of the evidence we are forced to the conclusion that it is sufficient to sustain the verdict. It is unnecessary to say more on this point. "We have thus disposed of , all the assignments of error, and in substance all the exceptions contained in the record. By the Court. — • The appeal from the order of the circuit court is dismissed. The judgment of the circuit court is affirmed upon the merits, büt without prejudice as to any order, proceeding, or action which has or may be had or taken in regard to the retaxation of costs.