Stanhilber v. Graves

Newman, J. The appellant claims that the trial court erred (1) in its findings of fact; (2) in its conclusions of law; (3) in rejecting evidence offered by the appellant; (4) in not finding that the appellant’s judgment was a lien upon the land prior to the deed; and (5) in giving judgment for the respondents. 1. The appellant urges that the evidence tended to prove a state of facts the precise contrary of the facts found by the trial court. And therein seems to lie the infirmity of the appellant’s case. The evidence only tends to prove a state of facts in conformity with her theory of the case. .It does not absolutely prove it. So the case falls within the rule, so firmly established in our jurisprudence, that this court will not review the findings of the trial court on a controverted issue of fact, with a view to "determine, by a nice discrimination, on which side of the issue the evidence preponderates; but it will affirm the judgment where the finding is fairly supported by competent evidence, and is not plainly contrary to its preponderance. Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214; Momsen v. Plankinton, 96 Wis. 166; Racine Water Co. v. Racine, ante, p. 93. So, unless some error has intervened, the judgment must be affirmed. 2. The court’s conclusion of law follows inevitably from the facts found. 3. When the appellant had the case for rebuttal, she called as a witness one Kennedy, a lawyer. He was shown a mortgage upon the same land which had been executed by Graves [518] to James, in October, 1891, to secure the $4,000 debt which it was alleged that the deed had been given to pay. The witness had stated that the mortgage had been executed in his presence. He was then asked: “ There is no reference, is there, to a note in there?” This was objected to, as not being properly rebutting testimony, and because it was a privileged communication; and the objection was sustained. The appellant claims that by this ruling she was “precluded from showing that the mortgage and deed were not executed when they purported to be.” Certainly, the question asked was inapt to suggest to the mind of the court that evidence on that question was contemplated. The question asked and objected to was really immaterial, and- could naturally be expected to lead to nothing material to the issue. If the plaintiff wished to introduce, at that time, testimony proper only in chief, she should have so informed the court, and asked for the privilege; for she could not then demand it as of right. She did not so inform the court, nor ask the privilege. The ruling was completely right on the ground of the immateriality of the question. Or, if the evidence now claimed was contemplated, it was equally right on the other ground, that it was not properly rebutting testimony. If it had been proposed by the plaintiff to prove in chief, by Kennedy, that the deed had been antedated, it seems that that might have been competent. The privilege of the client does not always cover acts done in the presence of his attorney. Coveney v. Tannahill, 1 Hill, 33; Crosby v. Berger, 11 Paige, 377; Patten v. Moor, 29 N. H. 163; Hunter v. Watson, 12 Cal. 363. Put the offer of this line of testimony, if made at the time when the question was asked, would have been too late, as matter of strict right, and admissible only in the discretion of the court. Its exclusion in that circumstance is no error. 4. Such a conclusion would have been directly in the teeth ■of the facts found. [519] 5. No other judgment was possible on the facts found. The plaintiff’s judgment could become a lien upon such interest only as Graves actually had in the premises at the time when it was docketed. R. S. sec. 2902; Goodell v. Blumer, 41 Wis. 436; Main v. Bosworth, 77 Wis. 660; Davenport v. Stephens, 95 Wis. 456; Freeman, Judgments, § 356. At that time he had no interest. The plaintiff is not a honafide purchaser for value, and so is not aided by the registry jaws. E. S. sec. 2241; Freeman, Judgments, § 366. Eut the plaintiff contends that she had acquired, and had, a subsisting lien upon the premises, by the levy of an attachment previous to the execution of the deed. But this contention is not sustained by proof. No original attachment was offered in evidence or shown to have existed. The only evidence offered was what purported to be a copy of an attachment which ivas found on the files of the register of deeds. It, of course, proved nothing except that that paper had been filed in that office. It did not prove that an attachment had been issued in the plaintiff’s action against Graves, with the necessary affidavit and undertaking attached, so as to authorize it to be executed. E. S. sec. 2731. The proof does not, in the least, sustain this contention. The judgment is clearly correct on the facts found. No reversible error is found. By the Court.— The judgment of the circuit courtis affirmed.