Buttrick v. Roy

Lyon, J. I. The defendant in error moved at the hearing to dismiss the writ of error on the ground that the writ does not lie in a case in which, as in this case, the court has power to award, and does award, a compulsory reference. The point is not well taken, and the motion must be denied. A writ of error lies after judgment in any action at law in a court of record, to correct some supposed mistake in the proceedings or judgment of the court. Burrill, Law Diet. tit. Error; 3 Bl. Comm. 406; 2 Tidd, Pr. 1134, 1141; Archb. Pr. 325; Co. Litt. 288b. The right to a writ of error is secured by the constitution. Art. I, sec. 21. This provision renders the writ inviolate, as it existed when the constitution was adopted; and at that time its scope and functions were as above stated. The statute on that subject (R. S. sec. 3043) does not attempt to restrict the functions of the writ. There is some language in the opinion in Crocker v. State, 60 Wis. 553, apparently giving a restrictive effect to the statute, upon which language counsel for defendant in error has predicated .an argument in support of his motion. [166] It was not intended in that case so to hold, but only to assert the rule that the writ can be brought only on a judgment given in a court of record proceeding according to the course of common law. Archb. Pr. 325. The order sought to be reviewed in that case was the result of an inquisition of lunacy. In such a case it is clear that no writ of error will lie, inasmuch as such order was not in a proceeding according to the course of common law. This court so held. II. The ease will now be considered on the merits. The accuracy of Boy's account against Buttrick, allowed by the referee, is not questioned. The amount allowed Buttrieh on his counterclaim covers all the items of the account which can properly be allowed under the proofs, except an item of $23 for a watch, which it is admitted should have been allowed in the account. The principal controversy in the case relates to interest on the note in suit. The referee and the court allowed interest thereon from the time it became due to the commencement of the action. No interest was allowed on either account. This ruling would be correct if none of Buttrick's account was applicable as a payment upon the note; but we think, under the testimony, some of it was so applicable. Buttrick testified that when the note became due he told Roy that it was not convenient to pay it at that time, and Roy replied that!i he did not need the money, and if he could get money when he wanted it, and goods from the store when he wanted them, he would not insist on payment then.” So far as we have discovered, this testimony is not contradicted, and we think it fairly proves that at least some portion of the money paid and goods sold and delivered by Buttrick to Roy should operate as payment on the note. The accounts of the respective parties commenced in November, 1881, and both accounts closed August 9,1883. ¥e think A at the fair and equitable basis upon w'hich the accounts and demands of the parties should be adjusted is to strike a [167] balance between their accounts, and apply, as of the date last mentioned, such balance as a payment upon the note in suit. After the accounts of the parties were closed, and before the commencement of this action, Buttrick became the owner of a valid judgment against Boy recovered by one Frair, May 2, 1885, for $26.15. The amount of this judgment and the interest thereon was properly allowed Buttrick, by the referee and the court. The amount allowed on Buttrick’s account (exclusive of the Frair judgment) was $1,853.07, to which should be added $23 for the watch, making $1,876.07. The amount allowed on Boy’s account was $927.89. The difference between the two accounts is $946.18 in favor of Buttrick. This amount should be allowed as a payment on the note in suit as of August 9, 1883. Stated upon the foregoing basis, the account will stand as follows: Note dated December 1, 1881, payable April 1,1882. $923 80 Interest from April 1, 1882, to August 9, 1883. 87 84 $1,011 64 Deduct balance of accounts in favor of Buttrick. 946 18 Balance due on note August 9, 1883. $65 46 Interest on balance to May 2,1S85, being date of Frair’s judgment . 7 91 $73.37 Deduct Frair’s judgment. 26 15 Due on note May 2, 1885. $47 22 Add interest thereon from May 2, 1885, to date of judgment herein. By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to render judgment for the defendant in error in accordance with this opinion.