Rose v. Tolly

15 Wis. 443

• Court: Wisconsin Supreme Court
• Decided: May 15, 1862
• Status: Published

Opinion

By the Court,

PAINE, J.

We are unable to see how the judgment in this case can be sustained, for the reason that the finding, as well as the judgment itself, seems to be entirely defective. There is no finding as to the value of any of the animals mentioned. So far as the “jennet” or “ hin-ny” was concerned, there is no positive finding in favor of either party, but the court found that the plaintiff was entitled to her, provided a chattel mortgage for $55 which the plaintiff Held on said “jennet or hinny,” was not paid within ten days from the date of the finding. And the judgment was conditioned accordingly. We know of no authority in law for inserting equitable conditions into the finding and judgment in replevin, in this manner. The plaintiff, to maintain the action, must have been entitled" to the possession at the time the suit was commenced. And the finding should relate to that time, and show positively whether she was so entitled or not. The value also should have been found, and the judgment, if for the plaintiff, should have been in the alternative, for the possession or the value in 1858, chap. 182, ’ F ’ case a delivery could not he had. R. S. sec. 81.

In regard to the jack colt, the finding is- merely that the plaintiff failed to show that she was entitled to it. But there is no finding for the defendants as to that, and no disposition was made of it by the judgment.

There is an entire failure to comply with the well settled rules in regard to findings in such actions, and the defects cannot be remedied without a new trial.

The judgment is reversed, with costs, and a new trial ordered.