Coleman v. Hunt

• Decision Date: 21 June 1890
• Parties: COLEMAN v. HUNT ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 263

45 N.W. 1085

COLEMAN

v.HUNT ET AL.

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Crawford county; GEORGE CLEMENTSON, Judge.Webster & Miller, for appellant.

C. S. Fuller, for respondents.

COLE, C. J.

After the action of Hunt v. Rooney, ante, 1084, (just decided,) had gone to judgment in the circuit court, the plaintiff commenced this action to foreclose his mortgage. All the defendants, except Rooney, answered, setting up the proceedings in the case of Hunt v. Rooney, and claiming that the judgment therein was a bar to this action. On the issues made by the pleadings, the case came on for trial, and it appearing to the court, as the record in substance recites, that the matters set up by the defendants, as a prior adjudication and in bar to the plaintiff's action, might determine the entire controversy, the court decided to hear the evidence bearing upon that issue first, and practically confined the trial to that issue alone, without going into the other issues. It is obvious that the case was for trial upon the merits, and all competent testimony offered to prove the issues formed should have been received and considered. It was error to confine the trial, as was done, to the plea in bar. And in regard to that defense we will say that we are unable to understand how the adjudication in the suit of Hunt v. Rooney could conclude the plaintiff herein as to any facts. He was not a party to that suit, and his application to be made a party, and try the issues therein involved, was denied, except upon his complying with terms which the court had no right to impose. True, we have held that he was an indispensable party to the accounting in that suit, because he claimed to be the owner of the mortgage debt, and therefore he should have been before the court; but he was not brought in in fact. He was not even served with process in that suit; had no opportunity to make a defense as to the facts there alleged on the part of the plaintiffs, except upon the condition we have stated. Consequently, we are at a loss to know what principle of law or justice can be said to bind him by the judgment in that case. It is a fundamental principle of our jurisprudence that a personal judgment only concludes the parties and their privies. It is true, here, the plaintiff claimed to have purchased the note and mortgage from Rooney; but that was long prior to the commencement of the suit of Hunt v. Rooney. He was not so identified...