Summary
APPEAL from the Circuit Court for La Fayette County.
This action was commenced in the name of George Baw as plaintiff, by service of a summons for relief in 1864. The original complaint alleges, in substance, that defendants, on the 1st of January, 1862, executed three promissory notes to plaintiff, each for the sum of $1,333.33, with interest, payable respectively in one, two, and three years from that date, the same being for the purchase-money of plaintiff’s interest in certain described lands, which had been the partnership property of plaintiff and defendants, but his interest in which he sold to them at that time, upon a dissolution of the partnership ; that no part of the interest or principal due upon said notes has been paid; that defendants still own said lands (with an unimportant exception), and no lien or in-cumbrance exists upon them, except that of plaintiff for said purchase-money,; that plaintiff has no other security than said notes and said lien, which latter he has never waived; that an action is pending in said court, brought by him against said defendants, upon the first of said notesthat he is still the lawful owner and holder of all three of the notes; that no proceedings have been had heretofore to enforce his fiemas vendor of said lands; that no action has been begun by Mm on the last two notes ; and that it is not the purpose of this action to interfere in any manner with the action pending on the first note, “until judgment be obtained therein.” It is further alleged that defendants are largely indebted, that actions against them to a large amount are pending undetermined, and that plaintiff has good reason to fear that he will lose and be defrauded out of said purchase-money, unless a vendor’s lien upon said lands be adjudged in his behalf. The judgment demanded is: 1. For the amount of the second note, principal and interest. 2. That the amount of said purchase-money, with interest, be declared a specific lien upon said lands in plaintiff’s favor, and that said lands, or so much thereof as may be necessary, be adjudged to be sold to satisfy the amount for which plaintiff may recover judgment in this action • on said second note. 3. That defendants, etc., be restrained from disposing of or incumbering said lands until said purchase-money, with interest, be paid, or until the lien adjudged by the court be fully satisfied and discharged. 4. For costs, etc., and for general relief.
A demurrer to this complaint having been sustained, .an amended complaint was served in 1867, which alleges, for a first cause of action, the execution by defendants to plaintiff, .on the 1st of January, 1862, of their promissory note for $1,333, with interest, payable January 1, 1864, and that plaintiff is the owner and holder, and no part of the same has been paid, etc. For a second cause of action similar averments are made in respect to a note of defendants to plaintiff, made at the same time, and due January 1, 1865. It is then alleged that said two notes “are two of the identical promissory notes described in the first complaint herein, to which this is amendatory.” A personal judgment for the amount of said notes, with costs, etc., is demanded, and, also, judgment that plaintiff “have a vendor’s lien on the real estate described in his original complaint, * * in the manner and upon the terms therein specified and demanded, for the payment and satisfaction of. his said .damages, costs and disbursements.”
A demurrer to the second cause of action was sustained, and an answer was filed, containing a general denial of the first. On the 28th of April, 1868, plaintiff’s counsél presented in open court an affidavit of Stephens, stating that the above-mentioned plaintiff, Greorge Raw, died on the 17th of September, 1867, and that said affiant had been “duly appointed,” and was acting as administrator of his estate. Appended to the affidavit was a notice directed to the defendants’ attorneys^ that on the next day the court would be moved, upon said affidavit, to order the cause continued in the name of said Stephens, as administrator. Attached to said affidavit was also an order of court upon defendants’ attorneys, of the same date, to show cause, on the next day, why the motion should not be granted; and “on the back of said notice and order to show cause,” defendants’ attorneys, on the same day, admitted service of the order. At the same term, on the 6th of May, 1868, the court granted said motion; and the defendants excepted to the order, on the grounds that it was made upon insufficient notice to them, and was not based upon any sufficient petition. At the April term, 1869, “the said cause, then being on the calendar of causes to be tried by a jury, was reached in regular order, and thereupon the court, without motion by either party, both parties being present in court by their attorneys, referred the following question to a jury for trial, and no other, to wit: Are the defendants indebted to the plaintiff on the promissory note described in the complaint, and to what amount ? ” ’ The plaintiff, against defendants’ objection, read in evidence the note payable January 1, 1864; and, without any further evidence being adduced, a verdict was found for the plaintiff. “Thereupon the defendants’ counsel excepted to said trial, reference and finding in open court.” Afterward, on the 9th of June, 1869, at a regular term of the circuit court for Qrawford county (which, as well as La Layette county, is in the fifth judicial circuit), judgment was rendered upon the verdict, due notice of the application therefor having been given to defendants’ attorneys; and this judgment was ordered to be entered in the office of the clerk of the circuit court for La Layette county, as of the April term, 1869.*
The defendants appealed from the judgment, excepting thereto, on the grounds that the action was never revived or continued in the name of the administrator; that there had never been any trial thereof; that no finding of facts or conclusions of law had ever been filed or made therein; that the judgment was not consistent with the complaint, was not warranted'by the proof, was not sustained by any finding of facts, verdict or conclusions of law, was not rendered at any term of the conrt in which the action was pending, and included interest after verdict.
contended that the order reviving the action was irregular, because not in compliance with sec. 1, ch. 363, Laws of I860,* which gave defendants twenty days to show cause after notice of the motion; that the affidavit of Stephens did not state whether he had been appointed administrator by a court of this state, and the court could not presume that to be the fact; and that if he was appointed by a foreign court the affidavit should allege the filing of an authenticated copy of his letters and bond in the. county where the suit was pending. Ch. 28, Laws of 1860. 2. The plaintiff was bound to. elect which of his remedies, the legal or the equitable, he would pursue. The rights of a vendor in this respect are different from those of a mortgagee. 1 L. C. in Eq. 361; Barker v. Smarlc, 3 Beav. 64; Dart on V. and P. 360 ; 2 Sugden on Tend. 343; 1 Hilliard on Mort. 666. Plaintiff elected to pursue his equitable remedy by bringing this action to enforce a vendor’s lien. Having so done, during the pendency of this action he has no personal remedy on the note. The judgment is entirely inconsistent with the pleadings. It is such a variance as could not be cured by amendment, because it changes the cause of action. 3. The verdict is not sustained by the proof, because no evidence was adduced that plaintiff was administrator of Greorge Baw’s estate. Moore v. Band, 1 Wis. 247. 4. Ch. 133, Laws of 1866, provides only for judgments on motion or demurrer (and not upon verdict) being rendered at a term in a different county from that m which the action is pending. No motion is necessary for judgment upon a verdict. R. S., ch. 132, sec. 16. 5. Interest after verdict should have been included in the costs and not in the judgment. R. S., ch. 133, sec. 43.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
