Holmes v. Webb

SiebeckeR, J. The trial court’s order that the defendants’ answer be stricken out as frivolous and granting leave to the defendants to serve another answer was not followed by the defendants by answering over and judgment was entered against all the defendants. The defendants Webb and Barber, appellants in the action, contend that the court erred in striking out their answers as frivolous. It is urged that the allegation of their answer is sufficient to show the guaranty of the notes signed by them is void for want of a consideration. We are cited to Jenkins v. Schaub, 14 Wis. 1, and other cases recognizing [283] that a want of consideration is a defense in contracts of this nature. Sec. 1675 — 51, Stats. 1915, provides: “. . . An antecedent or pre-existing debt, discharged, extinguished or extended, constitutes value.” It was held in the case of Day v. Elmore, 4 Wis. 190, that the consideration of a contract of guaranty to be expressed in writing is not required to state the actual amounts received, and that the words “for value received” are sufficient to meet the calls of the statute. In Dahlman v. Hammel, 45 Wis. 466, it is declared: “The consideration of guaranty need not pass between the parties to it. It is enough if a benefit arises to the party for whom the guaranty is given, and forbearance and extension of credit on the original indebtedness is sufficient.” The facts alleged in the complaint and the answers of the defendants show that the trial court correctly held that the guaranty of Webb and Barber is not void for want of a consideration. These pleadings show that the notes in question were given for a pre-existing debt. There is no fact pleaded to show that the pre-existing debt was not due and payable at the date the notes sued on were given. Under the facts alleged the law presumed that it was due and payable. The record discloses that the defendants were given an opportunity to plead any facts showing that the giving of the notes was not an extension of the time of payment of the debt and thus show a want of consideration, but the defendants elected not to answer further on the subject. It is considered that the trial court’s ruling is sustained upon the grounds that the facts pleaded show that the notes operated as an extension of the time of payment of the pre-existing debt for which the notes were given, and that this benefit to the original debtors is a sufficient consideration for the guaranty which appears on the backs of the notes and signed by the defendants Webb and Barber. Under the facts and circumstances alleged the clear inference is that the contract of guaranty was made before the delivery of the notes, and [284] hence the consideration of the extension of the time of payment of the debt for three months provided for in the notes is a good and sufficient consideration of the guaranty. The facts alleged in the answers do not constitute any defense to the notes and the guaranty, and the court properly struck out the answers as frivolous. The defendants contend that the court erred in permitting recovery in the judgment of the $10 motion costs allowed the plaintiffs on the motion to strike out the answers. The court manifestly imposed the $10 under the provisions of sec. 2924, Stats., as absolute motion costs. The question is: Can these costs be properly included as an item of recovery in the judgment in the case? In Van Ness v. Corkins, 12 Wis. 186, it is stated that to do so is an irregularity under the statutes governing the subject. Chief Justice DixoN, speaking for the court, says: “Such costs form no part of those finally taxable on the recovery of judgment. The payment of such costs is to be enforced by a special proceeding to be taken according to provisions of ch. 149 of the Revised Statutes.” See sec. 3419, ch. 150, Stats. 1915. We discover no good reason why this ruling should not be followed. This improper inclusion of the $10 in the final judgment does not necessarily operate to affect any substantial right of the appellants. In fact the irregularity has not varied the appellants’ obligation to pay this sum to the plaintiffs. Under these circumstances it does not constitute any prejudicial error within the provisions of sec. 3072m, Stats. 1915, and the judgment and order appealed from must be affirmed, the respondents to recover costs in this court. By the Qourt.- — It is so ordered.