Boring v. Ott

Citation138 Wis. 260,119 N.W. 865
PartiesBORING v. OTT.
Decision Date26 January 1909
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Ashland County; E. W. Helms, Judge.

Action by C. O. Boring, executor of Franklin J. Pool, deceased, against Eli Ott. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

Marshall, J., dissenting in part.

This action was brought to perpetually enjoin the defendant, Eli Ott, from further prosecuting an action in which Ott was plaintiff and the plaintiff herein defendant in the circuit court for Ashland county, and enjoining the entry and enforcement of collection of such judgment or any part thereof out of the estate of F. J. Pool, deceased, and for other relief, which judgment was ordered by this court in Ott v. Boring, 131 Wis. 472, 110 N. W. 824, 111 N. W. 833, where the facts upon which judgment was ordered are stated. The grounds of action to restrain the entry and collection of this judgment are that the contract between Pool and Ott, made in 1887, and upon which the judgment sought to be enjoined in this action was founded, was rescinded and canceled by mutual agreement between Pool and Ott in 1889, 15 years before Pool's death, and that Ott concealed such fact from Pool's representatives, to whom it was unknown, and, after Pool's death, asserted his claim against the estate of Pool under such contract which he represented to be in force and valid against the estate, and by fraudulent representations imposed upon and deceived the representatives of Pool and the court and secured a judgment by fraud and perjury which was not discovered until the rendition of the judgment of this court heretofore referred to, although every reasonable effort to discover the same was made. Ott answered, denying generally the material allegations respecting misconduct and rescission, and set up the decision in Ott v. Boring, former action, as a bar, and also pleaded lack of diligence in former action.

On the trial of this action the court found as follows:

“That in the fall of 1889 the defendant, Ott, was discharged by the late Franklin J. Pool from his employ, and a few days later was re-employed by said Pool solely as a clerk, at a salary of $15 per week. That at the time of such re-employment the written contract or letter of October 17, 1887, was by agreement between them, as a condition of such re-employment, mutually canceled, rescinded, and abrogated, and said Ott voluntarily then surrendered up and waived all his rights under the same.

That soon after the death of said Pool in July, 1904, said Ott, concealing the fact of such surrender and cancellation from the family of Pool and from the plaintiff, set up a claim under said contract of a quarter interest in the store business left by Pool, and filed with the county court his verified claim for such interest against said Pool's estate. That in the county, circuit, and Supreme Courts he asserted in his action thereon against said estate that he was entitled to said interest under said written letter or contract, and concealed the fact of such rescission and cancellation and imposed the said agreement upon the estate and court as valid, and thereby procured a decision of the Supreme Court in his favor sustaining and upholding his said claim. Such decision was rendered February 19, 1907. 131 Wis. 472, 110 N. W. 824, 111 N. W. 833. That said verification of his claim as a valid one, and concealment of said surrender and cancellation, under the circumstances, was a fraud upon said estate and upon the court.

That prior to August, 1904, when said Ott presented said claim to the family of said F. J. Pool, the family and heirs and executors of said Pool and their attorneys did not, nor did any of them, know, and had never heard, of the existence of said agreement of October 17, 1887. That in August, 1904, was the first time they or any of them ever learned of its existence.

That between February 19, 1907, and February 22, 1907, the plaintiff's attorneys for the first time discovered that said agreement or letter of October 17, 1887, had been surrendered and canceled in the lifetime of said F. J. Pool, and prior to February 19, 1907, neither the family or heirs of said Pool or the executors of his estate, or their attorneys, or any of said persons, had known or learned, or had any means of knowing or learning, anything of that nature, and had no reason for believing that any such fact existed.

That prior to the trials which were had in the county and circuit courts upon said Ott's claim the said executor and his attorneys used all reasonable and due diligence to ascertain any and all facts bearing upon the validity of said claim, and ascertained everything which was then ascertainable, and were not negligent in failing to discover the fact of said cancellation which afterwards came to light.

That after the discovery of said new facts between February 19, 1907, and February 22, 1907, the said executor or his attorneys were not guilty of negligence in not applying to the Supreme Court within 30 days from its decision for an enlargement of its mandate upon the facts then within their possession, or in not applying to the circuit court for a new trial under the statute.

That the issue involved in this action was not involved, tried, and passed upon in the former action of Ott v. Boring, determined as aforesaid by the Supreme Court on February, 19, 1907. 131 Wis. 472, 110 N. W. 824, 111 N. W. 833.”

And as conclusions of law the court found:

“That in suppressing and concealing the fact of cancellation of said contract said Ott procured the judgment in his favor in said former action by fraud.

That the plaintiff is entitled to an injunction against the defendant perpetually restraining and enjoining him, his heirs, executors, administrators, and assigns, from in any manner enforcing, or taking any steps to enforce, the judgment in his favor rendered or entered or to be entered in this court under the mandate of the Supreme Court under said decision of February 19, 1907, in said action of Ott v. Boring, as executor, and to have the lien of the same set aside as a cloud upon the title to any real estate left by said F. J. Pool, deceased, upon which the same might appear to be a lien, and with leave to the plaintiff to apply to the court for a further decree upon the foot of the judgment compelling the defendant Ott to satisfy said judgment, in whole or in part, if such relief should become necessary to protect the plaintiff or the estate of said F. J. Pool therefrom.”

Judgment was rendered in favor of the plaintiff in accordance with the findings, from which judgment this appeal was taken.

Sanborn, Lamoreux & Pray and Horace B. Walmsley (Burr W. Jones, of counsel), for appellant.

Richard Sleight (James G. Flanders, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

Counsel for appellant seasonably objected to any evidence under the complaint for the reason that it did not state facts sufficient to constitute a cause of action. The court overruled the objection, and this ruling is assigned as error. The basic ground upon which equity is invoked to restrain execution of the judgment is the alleged fraud and perjury in presenting and maintaining the claim against the estate of Pool when no such claim existed, because the original agreement between Pool and Ott had been canceled and rescinded, and the appellant continued in the employ of Pool under a contract of service only. The ground upon which the plaintiff's complaint can be sustained, if at all, is based upon the allegations of perjury in verifying the claim and sustaining it by committing perjury, diligence on the part of plaintiff on former trial, and failure to discover such fraud and perjury in time to be available in the former action. The claim was presented in the county court, disallowed, case appealed to the circuit court, general denial, statute of limitation and payment pleaded, there disallowed, and on appeal to this court reversed, and judgment ordered for Ott. After reciting the facts leading up to the reversal by this court in Ott v. Boring, 131 Wis. 472, 110 N. W. 824, 111 N. W. 833, the complaint in the present action sets up facts showing rescission and cancellation of the old contract, promise of surrender by Ott, making of the new agreement by which Ott agreed to continue in the employ of Pool on a salary, the alleged false claim that the old contract had been lost, concealment of it until after Pool's death, and intent to defraud the estate of Pool by the false claim that the contract was still in force, willfully testifying thereto, and thus obtaining the judgment by fraud and perjury, which this action is brought to enjoin. It is strenuously insisted by appellant under this head that the former judgment is conclusive upon the parties to this action, and cannot be questioned in the instant case; while on the part of the respondent it is insisted that, the alleged rescission, cancellation, and perjury committed by plaintiff not having been discovered until after judgment in the former action, such question was not in fact litigated, and therefore cannot be held conclusive upon respondent. It is said that release and rescission are new matters, and must be pleaded, and, not having been pleaded or known to respondent at the time of former trial, he is not precluded by the judgment upon such issues. Of course, the doctrine is too well settled in this court to require citation of authority that the parties to an action are not only concluded by the judgment on all matters litigated, but all that might have been litigated between them upon the subject-matter of the suit, so that all defenses to the cause of action sued upon, whether set up or not, are concluded by the judgment in the same action. This general rule does not seem to be denied by respondent's counsel, but they contend that where a new defense arises...

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