Minneapolis Threshing Machine Co. v. Haug

KeewiN, J. The only question involved in this case is-whether the appellant violated sec. 2316a, Stats. (1898),. which reads: “No sale of any personal property taken by virtue of any chattel mortgage, . . . except by consent of the mortgagor,, his legal representatives or assigns, shall be made before the-expiration of five days from the time when the same was actually taken, nor shall any such property during such time-be removed from the county where it was situated when taken; and during such period such property shall be subject to redemption by payment of the mortgage debt and the actual and necessary costs and expenses of taking and keeping it incurred at the time of making redemption. Any person aggrieved by a violation of any provision of this section may recover of the person who violated the same, in addition to-his actual damages, twenty-five dollars as liquidated damages. If any such property is sold at private sale, without public notice, or is sold within the period herein limited, without such consent, the mortgage debt shall be deemed paid and the mortgage securing the same be deemed canceled. . . This is a highly penal statute and must be strictly construed. Hammel v. Cairnes, 129 Wis. 125, 107 N. W. [353] 1089; Cohn v. Neeves, 40 Wis. 393; Wright v. E. E. Bolles W. W. Co. 50 Wis. 167, 6 N. W. 508; Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485; Johnson v. Huber, 117 Wis. 58, 93 N. W. 826. The mischief intended to be prevented by the statute may be considered in construing it. Cohn v. Neeves, supra. This was to prevent mortgagees from seizing chattel-mortgage property and removing it from the county where situate, or taking it out of the possession of the mortgagor and immediately selling it without notice to him. We think the actual taking mentioned in the statute means a corporal taking out of the possession and control of the mortgagor. In order to incur the penalty prescribed by this statute it was necessary that the property covered by the chattel mortgage be taken and sold by plaintiff within five days from the time the same was actually taken. There is nothing in the record showing such taking, or any taking, within the meaning of the statute; hence no violation of the statute was shown and no defense was made out, and the plaintiff was entitled to judgment for the amount due on the’ notes. By the Court. — The judgment of the court below is reversed, and the action remanded with directions to the court below to render judgment for plaintiff on the notes sued upon.