Thomas v. Wiesmann

44 Wis. 339

• Court: Wisconsin Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Cole, J.

We do not feel called upon to notice, in detail, the numerous errors assigned for reversal of this judgment. The appeal really involves nothing more than a question of costs. The jury, under the charge of the court, must have found that the plaintiff, as town treasurer, seized the mare in question by virtue of a valid tax warrant, for the purpose of collecting an unpaid tax which the defendant and his father were jointly liable to pay; that a personal demand was made by the plaintiffj subsequent to January 1, 1875, upon the defendant and his father, for the payment of this tax, and payment refused; that the mare was the joint property of .the defendant and his father; and that the defendant unlawfully detained the animal from the possession of the plaintiff. There was evidence from -which the jury might well have found these facts.

It appears that the amount of delinquent tax, with fees for collection, and interest, was paid pending the aj)peal in the circuit court, and the mare was returned to the possession of the defendant. But the payment of the tax did not settle the controversy, nor extinguish the plaintiff’s right of recovery. Eor payment of part of a claim, pending an action, does not deprive a party of his right to recover the remainder. In this case, payment of the tax would go in mitigation of the damages which the plaintiff had the right to recover. But he was entitled to recover damages for the detention and conversion of the property by the defendant, even after the tax was paid. True, tbe jury only gave nominal damages, perhaps because the plaintiff claimed no more.

In his answer the defendant set up, as a bar to this action, the pendency, in the circuit court, of a former suit in which he was plaintiff, and the plaintiff in this suit was defendant. On the trial, Mr. Nichols, clerk of the circuit court, was sworn as a witness for the defendant, and produced papers in the case of Henry 'Wiesmann against Martin Thomas, as returned to him by A. W. Pease, a justice of the peace of the county. These papers were offered in evidence, but were excluded on the objection of the plaintiff. This ruling is assigned as error. The bill of exceptions fails to show what that record was. Being ignorant of its nature and contents, we cannot say that it was improperly rejected. Indeed, we must presume that the court excluded it because it was irrelevant and immaterial. If the defendant desired the ruling of the court as to the admissibility of the record to be reviewed, he should have incorporated it in the bill of exceptions, or, at least, set it out sufficiently, so that we could see, on inspection, that it was the record of a former suit still pending and undetermined, relating to the property or transaction which is in controversy in this action. As the record stands, we must presume that the court was right in rejecting the record and papers offered in evidence.

This disposes of all the questions we deem it necessary to notice.

By the Cowrt. — The judgment of the circuit court is affirmed.

A motion by the appellant for a rehearing was denied.