Stradling v. Nelson

Eschweiler, J. The trial court was right in holding as a matter-of law that the pool tables, the billiard table, and the respective equipments, as well as the steel locker, were not to be considered furniture or fixtures pertaining to the unmentioned stock of cigars, candies, and other merchandise, small in value compared with the property specifically described in the writings and maintained in the pool-room business, and therefore were properly subject to plaintiff’s lien. [311] The distinction between pool and billiard tables as used in a pool-room enterprise and furniture and fixtures pertaining to and necessary in disposing of a small stock of cigars, cigarettes, and candies also maintained at the same place is so clear that it needs no discussion. That plaintiff’s mortgage lien may be valid as to but part of the property included by its terms, there being no question of active fraud involved, is certain. Eastman v. Parkinson, 133 Wis. 375, 388, 113 N. W. 649; 11 Corp. Jur. 491. As to the property here in question, the plaintiff’s lien was not lost by reason of failure to file the chattel mortgage with the register of deeds under the terms of the statute involved. Estate of Dunlap, 184 Wis. 345, 350, 199 N. W. 387; Missos v. Spyros, 182 Wis. 631, 636, 197 N. W. 196. It is further contended that the judgment must be reversed because it did not expressly determine the question of title to all of the property seized by plaintiff on his writ of replevin, and because costs were allowed to plaintiff although he succeeded in having his special interest to the amount of his chattel-mortgage note with interest established in and to only about one half of the property seized. The defendant, however, denied and contested plaintiff’s right to any of the property. The property was returned to defendant upon his giving the requisite bond, and defendant’s possession and title cannot, of course, be now questioned by plaintiff. The judgment was in proper compliance with the statute. Other questions presented are unnecessary to be discussed. By the Court. — Judgment affirmed.