Baxter v. Day

Wisconsin Supreme Court

Baxter v. Day

40 N.W. 675, 73 Wis. 27, 1888 Wisc. LEXIS 23

DecidedDecember 4, 1888

StatusPublished

This text of 40 N.W. 675 (Baxter v. Day) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baxter v. Day, 40 N.W. 675, 73 Wis. 27, 1888 Wisc. LEXIS 23 (Wis. 1888).

Pincite

Opinion

Cassoday, J.

If the defendants were entitled to have Hale and Shipley made parties defendant in the place of themselves, then it was by virtue of sec. 2610, R. S., as amended by ch. 41, Laws of 1883. The clause of that section which may be urged as applicable with most plausibility is this: “A defendant, against whom an action is pending upon a contract, or for specific real or personal property, or for the conversion thereof, may, at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, malees against Mm a demand for the same debt or property, . . . ap[29]*29ply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may <in its discretion make the order.” This is not an action “ for specific real or personal property, or for the conversion thereof.” It is, however, an action “ upon a contract.” But in such an action the defendant has no right to such interpleader, unless “ a person not a party to the action . . . makes against him a demand for the same debt? Hale and Shipley have made no claim to the contract price of the logs which the defendants agreed to pay the plaintiff. x Their claim, if any, is based upon their alleged ownership of the logs. Their remedy, if any, is manifestly to replevy the logs, or in an action for their wrongful conversion. In neither action could they make “a demand for the same debt” which this action is brought to recover. The case is not, therefore, within the statute.

By the Gourt.— The order of the circuit court is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Cassoday, J.

If the defendants were entitled to have Hale and Shipley made parties defendant in the place of themselves, then it was by virtue of sec. 2610, R. S., as amended by ch. 41, Laws of 1883. The clause of that section which may be urged as applicable with most plausibility is this: “A defendant, against whom an action is pending upon a contract, or for specific real or personal property, or for the conversion thereof, may, at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, malees against Mm a demand for the same debt or property, . . . ap[29]*29ply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may <in its discretion make the order.” This is not an action “ for specific real or personal property, or for the conversion thereof.” It is, however, an action “ upon a contract.” But in such an action the defendant has no right to such interpleader, unless “ a person not a party to the action . . . makes against him a demand for the same debt? Hale and Shipley have made no claim to the contract price of the logs which the defendants agreed to pay the plaintiff. x Their claim, if any, is based upon their alleged ownership of the logs. Their remedy, if any, is manifestly to replevy the logs, or in an action for their wrongful conversion. In neither action could they make “a demand for the same debt” which this action is brought to recover. The case is not, therefore, within the statute.

By the Gourt.— The order of the circuit court is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

40 N.W. 675, 73 Wis. 27, 1888 Wisc. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-day-wis-1888.