Gage v. Allen

Cassoday, J. It appears from the foregoing statement that this controversy has continued for nearly eight years without any adjudication upon the merits. The mortgage was given by Mrs. Wayland to the plaintiffs to secure a debt of $466, and no more. On the day it was given, the plaintiffs, as such mortgagees, replevied the goods mortgaged, and based their right to possession entirely upon the mortgage. Gage v. Wayland, 67 Wis. 566. The next day Mrs. Wayland made a voluntary assignment of all her property to Allen, for the benefit of her creditors. Allen, as such assignee, thereupon claimed the property so replevied from the sheriff, as prescribed by sec. 2727, R. S. The basis of such claim appears to have been, in effect, that the mortgage was given by an insolvent debtor within sixty days prior to the making of such assignment, and in contemplation thereof or of insolvency, to the knowledge of the plaintiffs, and hence was void and of no effect against such as-signee, under the statutes (sec. 1693a, S. & B. Ann. Stats.); and the subsequent suit brought in his name was for the purpose of having that question adjudicated. The delay of seven years in prosecuting that suit may be explainable, but it is. unaccounted for. Assuming that the mortgage was valid, still it is obvious that Allen, by virtue of the assignment, acquired the right to the property, subject only to the payment of the mortgage debt and the accrued costs. Allen having made claim to the property, as mentioned, the sheriff demanded further indemnity of the plaintiffs, as [328] prescribed by sec. 2727, R. S. The plaintiffs having failed to give an undertaking satisfactory to the sheriff, that officer delivered the goods to Allen upon his giving the undertaking dated July 22, 1885, mentioned in the foregoing statement, and constituting the basis of the plaintiffs’ secord cause of action alleged, and upon which this judgment is based. That undertaking was not given pursuant to any statute. The statutes prescribe the undertaking to be given by a plaintiff in commencing an action of replevin, and also for a further undertaking to be given by him in case the same is demanded by the sheriff, as here. Secs. 2720, 2727. So they prescribe the undertaking to be given by the defendant in case he requires a return of the property. Sec. 2722. But we are not aware of any statute authorizing a person not a party to the replevin suit to acquire the property by giving an undertaking like the one of July 22, 1885. True, Allen may be regarded as a re-ceiptor of the goods, and the undertaking in question as measuring his liability therefor to the sheriff. Bell v. Shafer, 58 Wis. 223; Main v. Bell, 27 Wis. 517. Still the question recurs whether Allen and his sureties are liable in this action to the plaintiffs for the value of the property, as found in the replevin suit, and the interest thereon, and the costs in that suit. True, Allen and his sureties thereby undertook, in case it should be adjudged in the replevin suit that the property be delivered to the plaintiffs or that they had a lien thereon, that then Allen should make such delivery or pay the amount of any judgment recovered therein, “ not exceeding the total amount received from the sale of the goods.” But as indicated, the plaintiffs were not bound to accept the undertaking, nor could such undertaking increase or diminish the amount of their claim upon the property, or the sheriff’s liability therefor to the respective parties. It may be questionable whether there is any legal privity between the plaintiffs and Allen and his sureties upon that [329] undertaking; but, assuming that there is, still we are constrained to hold that this judgment cannot be sustained. The plaintiffs brought the replevin suit as mere mortgagees. Their special interest in the property was limited by the amount of Mrs. Wayland’s indebtedness to them. That appeared upon the face of the complaint, and their affidavit for the delivery of the property to them necessarily set forth the facts showing that they were entitled to the possession by virtue of such special property therein. Subd. 1, sec. 2718, R. S. Upon such .a complaint and affidavit, it is very obvious that, as against the defendant Allen, as such assignee, the special interest of the plaintiffs in the property replevied was, at most, necessarily limited to the amount of the debt which the mortgage was given to secure. It is true the statute does not, as in justice’s court (sec. 3745, R. S.), expressly require the jury to find the amount of such lien, and then limit the judgment to the amount thereof so found, with interest and costs. Nevertheless, the statutes, by necessary implication, do, in effect, so limit the recovery, in a case like this. Secs. 2859-2888. The verdict in that case must necessarily be construed as meaning that the jury found the issues submitted to them in favor of the plaintiffs; that is to say, that the plaintiffs had a special interest in the property, limited to the amount of their debt against Mrs. Wayland and costs. Thus it has been repeatedly held that if the pleadings and evidence show that the party recovering has only a special property in the goods, and that the general property is in the other party, the jury should assess only the value of such special interest. Booth v. Ableman, 20 Wis. 23; Battis v. Hamlin, 22 Wis. 669; Warner v. Hunt, 30 Wis. 200; Union L. Co. v. Tronson, 36 Wis. 126; Farwell v. Warren, 76 Wis. 538; Single v. Barnard, 29 Wis. 463. But, as indicated, the jury failed to assess the value of such special interest. Allen, as such assignee, converted the goods covered by the mortgage into money, and [330] paid the proceeds thereof to the plaintiffs, before the commencement of this action. The $600 so paid largely exceeded the debt and interest secured by the mortgage, and we perceive no good reason why it should not have extinguished the same. But notwithstanding such payment the plaintiffs have recovered judgment in this action for $497.38, besides costs; and this recovery is upon an undertaking limiting the amount thereof to the “total amount received from the sale of the goods,” and which amount, as indicated, was paid to the plaintiffs before the commencement of this action. But, what is more remarkable, that judgment was ordered and recovered upon mere motion, without any trial, much less an assessment of damages, as required by the statute (sec. 2890); and this was done notwithstanding Allen?s answer alleges facts tending to show that the plaintiffs’ mortgage was absolutely void as against him as such assignee. The judgment is also erroneous in that it is based upon only one of the two causes of action alleged in the complaint, expressly leaving the other entirely undisposed of. There can be but one final judgment in the case, and that must dispose of all the issues and the rights of the parties. Sellers v. Union L. Co. 36 Wis. 398; Singer v. Heller, 40 Wis. 544; Treat v. Hiles, 75 Wis. 265; Sherman v. Menominee R. L. Co. 77 Wis. 23. In view of what has been said, the order striking out a portion of the answer becomes' of no importance. By the Court. — ■ The judgment of the circuit court is reversed, and the cause is remanded for trial and for further proceedings according to law.