Davis & Rankin Building & Manufacturing Co. v. Cupp

WiNslow, J. Upon examining the supposed record in this case we find that it consists of four -packages of fugitive papers, which have been returned to this court under the mistaken idea that they constitute a projier return upon the appeal. These detached bundles of paper are made up without regard to order, and are returned here in violation of nearly, if not quite, all the requirements of the statute and the rules of the court. Three of these1 packages have no certificate of the clerk of the court attached to them, and thus lack the identification necessary to entitle them to a recognition in this court. R. S. sec. 3050; Webster v. Stadden, 8 Wis. 225. One of these packages seems to contain the summons and complaint, the return of service, and the answers of the defendants; another seems to contain the deposition of certain witnesses taken in Chicago, and the stipulation under which they were taken; and the third seems to be an incomplete bill of exceptions. In this supposed bill of exceptions there is no statement or certificate that it contains all of the evidence, and no certificate of settlement by the circuit judge, and the only thing which justifies the suspicion that it is a bill of exceptions at all is a stipulation, signed by the plaintiff’s attorneys and by the attorneys, of all save one of the defendants, to the effect that it shall stand as the bill of exceptions in the case. The fourth package consists of [677] several subpoenas, the clerk’s fee bill, and the bill of costs, the notice and undertaking on appeal, the findings and exceptions thereto, and the judgment. This last package is the only one identified by the certificate of the clerk, and consequently is the only record or return which is before the court. There may be other irregularities which, from lack of time, we have not noticed, but from this statement it certainly appears, we think, that it would have required great industry and ability to have made the record more imperfect than it is. We have called attention to the condition of this record, because it sharply illustrates a difficulty which this court constantly meets. Records are frequently sent here consisting of chaotic masses of papers in detached parcels, thus entailing a large amount of unnecessary work on this court whenever it becomes essential, as it frequently does, to consult the original record. The present condition of the business of this court imperatively requires that no such unnecessary expenditure of time and labor should be demanded of it. The new rule adopted September 4,1894, and printed as No. WI-J in the new edition of the rules of this court (87 Wis. v.), will entirely obviate this difficulty, if it be observed, and it may be stated now that it is the intention of the court to see that this rule is observed in the future. Irrespective of all rules, however, the supposed return in this case is entirely indefensible, and we have had serious doubts whether we should not dismiss this appeal at once on account of the failure to make the return as directed by the law; but, inasmuch as the merits of the case have been fully argued without objection, we have concluded to ex•amine the case so far as to determine whether the pleadings and the findings support the judgment. We can go no further than this; the supposed bill of exceptions can cut no figure. Not only is it entirely without authentication, but, even if it were authenticated, there is no certificate of settle [678] ment by tbe circuit judge, and even if such, certificate could be supplied by the stipulation, still there is no statement that it contains all the evidence, and in the absence of such a statement we must presume that all the findings of fact were justified by the evidence. So we come simply to the consideration of the question whether the pleadings and findings justify the judgment. On this there can be little doubt. We construe the building contract to be a several contract with each subscriber to the amount of his subscription, and not as a joint contract by which each subscriber would become liable for the whole consideration. Though not in the same language, the purport of the contract is much the same as the one construed in Gibbons v. Grinsel, 79 Wis. 365, and which was held to be a several contract. A contract in the identical language of the one before us was construed by the supreme court of Michigan to be several and not joint. Davis & R. B. & M. Co. v. Murray, 60 N. W. Rep. 437. Such was the conclusion reached by the federal court in the case of Davis & R. B. & M. Co. v. Barber, 51 Fed. Rep. 148. The plaintiff claims a lien for a balance alleged to be due upon the building contract. Plainly, if there is nothing due on this contract there is no lien. The court found, and it- is a verity in the case, that those who had not paid their supposed subscriptions either never signed the contract at all or signed a. piece of blank paper under fraudulent representations and thus never became parties to it. All the remaining subscribers have paid their subscriptions, and, the liability of the subscribers being several, it necessarily follows that the building contract has been fully paid, that there is no balance due, and consequently that there can be no lien. By the Gourt.— Judgment affirmed.