Donkle v. Milem

Pinhey, J. 1. The order opening the judgment as to the defendant Milem and allowing him to serve an answer and defend was an order “ upon a summary application in an action after judgment,” and was appealable. R. S. sec. 3069, subd. 2. But the plaintiff did not appeal from this order, and his right to do so did not survive the judgment thereafter rendered in favor of the defendant Milem. American B. H., O. & S. M. Co. v. Gurnee, 38 Wis. 533. There is no bill of exceptions making the ruling of the court on the motion to open the judgment and allow the proposed defense a part of the record, and there is nothing whatever to show that the plaintiff excepted to this order. It has uniformly been held in numerous cases for a period of more than thirty years, that, on an appeal from a judgment, this court cannot review interlocutory orders which do not involve the merits and necessarily affect the judgment, unless they are excepted to and, with the papers on which they are founded, embraced in a bill of exceptions. Cornell v. Davis, 16 Wis. 686; Williams v. Holmes, 7 Wis. 168, and cases cited in note. 2. It is claimed that the order in question is reviewable on appeal from the judgment in favor of Milem, under sec.' 2, ch. 242, Laws of 1893, similar in its provisions to R. S. sec. 3070, which provides that, “upon an appeal from a judgment, as well as upon a writ of error, the supreme court shall review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in [38] any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error wbicb would, without a bill of exceptions, appear upon the face of the record.” Mere interlocutory motions and orders, not involving the merits and necessarily affecting the judgment appealed from, are no part of the record or judgment roll for the purposes of an appeal from the judgment, unless made so by a bill of exceptions. Cord v. Southwell, 15 Wis. 211; Geisinger v. Beyl, 71 Wis. 361; Kelley v. C., M. & St. P. R. Co. 53 Wis. 76; Edleman v. Kidd, 65 Wis. 18. It is plain, therefore, that unless the order can be said to be one involving the merits and necessarily affecting the judgment appealed from, the plaintiff has lost all right to have it reviewed in this court. The judg'ment appealed from is not affected in any way or manner by this order. It was rendered, as already stated, upon an objection and determination that, under the facts stated and conceded by the pleadings, the plaintiff had no cause of action against the defendant Milem. The order did not therefore, in any proper sense, involve the merits of the controversy. It cannot be a matter of legal concern how the pleadings found in the record came there, if, upon their face, they show that the plaintiff had no right of action against the defendant; and the order, under these circumstances, has no relation to the merits, and cannot be said to affect the judgment, for that stands and depends solely upon the pleadings, and wholly independent of the order. The objection to the reception of any evidence was, in effect, a demurrer ore ienus to the so-called amended complaint by way of reply to the defendant’s answer, and was a demand for a judgment on the pleadings, which the court gave accordingly. For these reasons the assignment of error based on the order in question must fail. 3. It was not necessary that there should have been any [39] exception taken to the decision of the court rendering judgment on the pleadings in favor of the defendant, to entitle the plaintiff to a review of that question in this court. The question whether the pleadings support and warrant the judgment is one arising upon the record proper, and may be tested by writ of error or appeal from the judgment. Edleman v. Kidd, 65 Wis. 18; Riley v. Riley, 34 Wis. 372; Bowman v. Van Kuren, 29 Wis. 209. The objection taken to the pleadings, and -the action of the court thereon, clearly appear upon the face of the judgment. Where there is no exception to the finding of the court, upon appeal the judgment will be reversed if it is not sustained by the pleadings and finding. Cramer v. Hanaford, 53 Wis. 85, 87. The pleadings in this case, upon which alone the judgment was rendered, sustain the same relation to the judgment as a finding after trial; and whether the judgment here appealed from was warranted must be tested by the pleadings and matters legally of record in the action. ' 4. Upon the facts stated in the amended complaint it is clear that the plaintiff made the loan to White, and Milem signed the note with him to secure its payment. He was surety for White, and the plaintiff knew it, for it is alleged that he refused to make a desired extension of time of payment when the note was about to become due, if Mrs. White would sign the same, unless the defendant Milem consented to it. White represented that he had seen Milem and that he would consent. Mrs. White signed the note, and Milem, when afterwards applied to, refused his consent. A few days thereafter the plaintiff entered the judgment in question against White, Milem, and Mrs. White. This judgment was in full force at the time of the trial, certainly as between the plaintiff and White and his wife, and as to Milem as well, for it stood under the order of the court as to him as security. It was conclusive evidence that the note was a valid and binding obligation as between the plaintiff and [40] Mrs. White, and in bis favor, notwithstanding the objections urged to its validity as to her by the plaintiffs counsel, that she was a married womanand that it was invalid by reason of the operation of the statute of frauds. The plaintiff was precluded and estopped from asserting its invalidity, or that there was a wrant of consideration as between the plaintiff and White for the alleged extension of the time of payment of the note. The plaintiff, after he knew that Milem had refused his consent to the arrangement, elected to enter judgment against all the parties who had signed the note, Mrs. White as well. He could not be heard to say thereafter that there was no extension of time of payment and no consideration for the note. If Milem had afterwards, as surety, paid the debt and so acquired the right to proceed against White as his principal, he would have been precluded by means of this arrangement of the right to proceed against White immediately for his reimbursement, and his legal rights in this respect would have been suspended during the period of the extension. This was such an interference with Milem? s rights as surety as discharged him from liability to the plaintiff. The judgment was, we think, conclusive evidence that the original contract had been altered so as to change the legal effect of it as between the original parties to it. The liability of a surety is one strictissimi juris. He has a right to stand upon the exact words of his contract, and to insist that it shall remain intact and without any alteration which may possibly in any way affect or impair his rights or embarrass him in the assertion of them. 2 Brandt, Suretyship, sec. 388; Drinkwine v. Eau Claire, 83 Wis. 430; State v. McFetridge, 84 Wis. 500. Any change in the personality, number, or relations of the parties to an instrument is, as a general rule, a material alteration. 1 Am. & Eng. Ency. of Law, 506, and cases cited by counsel for respondent. It is not, however, necessary to decide whether the mere ad [41] dition of the name of Mrs. White to the note, without the consent of Milem,, was such an alteration of the contract as to defeat any remedy on it against Milem,,— a question much discussed at the argument, and upon which there is a considerable conflict of opinion. Upon the facts conceded in the amended coinplaint, and established as well by the judgment, we must hold that the judgment in favor of Milem,, appealed from, is correct and must be affirmed. By the Court.— The judgment of the circuit court is affirmed.