Mandelker v. Goldsmith

Eschweiler, J. Upon the merits we think the judgment must be affirmed. The testimony as to the alleged oral agreement at the time of the making of the conditional sale of the .phonograph by plaintiffs tO' defendants could not properly be received in evidence or considered. It tended to contradict or impair the plainly expressed conditions and terms of the writings subscribed by the parties. It did not tend to prove anything in the nature of any fraud perpetrated by plaintiffs' upon defendants in connection with the making of such written contract; neither was it offered for the purpose of showing, nor did it tend to show, anything in the nature of a mutual mistake as to the terms of the contract so expressed in the writings. It was therefore clearly inadmissible. Edward T. Kelly Co. v. von Zakobiel, 168 Wis. 579, 580, 171 N. W. 75; Miley v. Heaney, 168 Wis. 58, 78, 169 N. W. 64; Jones v. Keefe, 159 Wis. 584, 587, 150 N. W. 954; Kilpinski v. Bishop, 143 Wis. 390, 392, 127 N. W. 974; Jones, Ev. (2d ed.) § 434. Defendants further assert that the proceedings in the circuit court whereby the judgment of the civil court was declared to be amended .by making Mrs. Goldsmith a party bound thereby were erroneous and for that reason the final judgment of the circuit court as against both defendants should be reversed. The written obligations upon which plaintiffs sought to recover were the joint obligations of Mr. and Mrs. Goldsmith. They both, therefore, under the provisions of sec. [249] 2604, Stats., should have been made defendants in the civil court. This situation was plainly presented to the plaintiffs from the obligations themselves and from the answer of the defendant. The plaintiffs called Mrs. Goldsmith as an adverse witness although she was not then a party, and after her identification of the writings offered the note in evidence. The defendant objected to such offer on the ground that it was a joint note and that only one of the signers was sued. The court might, pursuant to sec. 2884, Stats., then have re- • quired the plaintiffs to halt and take the proper steps to bring the other joint obligor into the action. In any event the subsequent entry of the judgment of the civil court against the defendant C. E. Goldsmith alone, as was done, was clearly erroneous. Brawley v. Mitchell, 92 Wis. 671, 66 N. W. 799; Evens & Howard F. B. Co. v. Hadfield, 93 Wis. 665. 669, 68 N. W. 468; Blackburn v. Sweet, 38 Wis. 578, 581; Nichols v. Crittenden, 74 Wis. 459, 461, 43 N. W. 105. Upon such a record the defendant Goldsmith would have had very substantial ground to urge on his appeal to the circuit court that such judgment should have been reversed. Sec. 2795, Stats., makes specific provisions for obtaining the relief whereby plaintiffs sought to have Mrs. Goldsmith then made a party and bound by the judgment. No attention, however, seems to have been paid to the procedural provisions of this statute. There was no summons issued, no description of the judgment or statement showing the amount due or that it had not been satisfied. If the attention of the court below had been called to such substantial failure to comply with the plain letter of the statute, the relief granted the plaintiffs might very well have been denied. The defendants contented themselves, however, with that which purported to be a general objection to the jurisdiction of the court. Mrs. Goldsmith, after being made a party, had ample op [250] portunity, under the provisions of secs. 2796 and 2797, Stats., to interpose such defenses as she might have to the merits of the controversy. Her testimony as given in the civil court upon the entire controversy was in the record before the circuit court, and nothing was there presented, as we have held above, that could defeat the entry of a judgment as against her upon the merits. For that reason we cannot now reverse the judgment. Sec. 2829, Stats. The plaintiffs’ contention that, no specific appeal having been taken by the defendants from the order of the circuit court making Mrs. Goldsmith a party, such ruling cannot now be reviewed on this appeal, is incorrect. As provided by sec. 3070, Stats., such order, being one made prior to and one which necessarily affected the judgment so far as Mrs. Goldsmith was concerned, is subject to our review upon the appeal from the judgment, as is indicated in such cases as Beebe v. M., St. P. & S. S. M. R. Co. 137 Wis. 269, 271, 118 N. W. 808; In re Baker, 72 Wis. 395, 400, 39 N. W. 764; Newman v. Board, 74 Wis. 303, 41 N. W. 961. . Feeliiig bound, as above indicated, to affirm the judgment upon the merits as against the defendants, nevertheless we feel that the failure on plaintiffs’ part to follow the proper proceedings both in the civil court and in the circuit courts should be visited with something more than mere verbal disapproval. Sec. 2949, Stats., in providing for costs on appeals like this, permits this court to disallow any such to- a prevailing party. We deem it a proper instance to deny the respondents any costs as against the appellants, and it is so ordered. By the Court. — Judgment affirmed, but with no costs to respondents.