Conway v. Division of Conservation, Dept. of Natural Resources, 34

• Decision Date: 05 February 1971
• Docket Number: No. 34,34
• Citation: 183 N.W.2d 77,50 Wis.2d 152
• Parties: Vaughn S. CONWAY et al., Appellants, v. DIVISION OF CONSERVATION, DEPT. OF NATURAL RESOURCES, an agency of the State of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 77

183 N.W.2d 77

50 Wis.2d 152

Vaughn S. CONWAY et al., Appellants, v. DIVISION OF CONSERVATION, DEPT. OF NATURAL RESOURCES, an agency of the State of Wisconsin, Respondent.

No. 34.

Supreme Court of Wisconsin.

Feb. 5, 1971.

This is an action in equity, brought in Columbia county, seeking relief from a judgment of the circuit court for Sauk county, entered March 16, 1966. The chronology of events involved is as follows:

June 20, 1956: Plaintiffs signed an option agreement extending an option to the State of Wisconsin (Conservation Commission) to purchase certain land.

October 8, 1956: State gave notice of exercise of option.

December 31, 1958: State commenced an action for specific performance of the exercised option to purchase.

June 29, 1961: State moved for summary judgment.

February 19, 1964: Circuit court for Sauk county ordered summary judgment be entered for the state and entered judgment for specific performance.

February 2, 1965: Supreme Court reversed and remanded for new trial. (State v. Conway (1965), 26 Wis.2d 410, 132 N.W.2d 539)

March 16, 1966: Circuit court for Sauk county entered judgment for the state for specific performance.

February 28, 1967: Supreme Court affirmed the judgment entered by the trial court. (State v. Conway (1967), 34 Wis.2d 76, 148 N.W.2d 721)

March 3, 1967: Deed to property involved deposited with the clerk of court of Sauk county.

July 28, 1967: State offered into court a sum less than the option price, deducting certain items which were at variance with the real estate description appearing in the option and the description appearing in the judgment. Appellants here demanded payment of option price of $16,536.50, plus interest.

October 18, 1967: State petitioned trial court for 'an order clarifying the judgment and for the enforcement of the judgment dated March 16, 1966. * * *'

December 22, 1967: Circuit court for Sauk county entered amending judgment of March 16, 1966, and reducing option price to $15,241.20.

October 29, 1968: Supreme Court reversed the trial court and reinstated the March 16, 1966 judgment of $16,536.50, deducting the cost of the abstract ($280.30) and allowing interest at the statutory rate from the date plaintiff deposited a properly executed conveyance with the clerk of court. (State v. Conway (1968), 40 Wis.2d 429, 162 N.W.2d 71)

January 7, 1969: Supreme Court denied motion of state for rehearing.

January 10, 1969: State offered to pay $17,746.35 (which sum included interest to February 7, 1969) to comply with amended judgment.

January 15, 1969: Plaintiffs commenced action in Columbia county, naming Division of Conservation, Department of Natural Resources, as defendant, seeking release from compliance with the 1956 option and 1966 judgment, plus costs and rental of the premises for nine years.

March 3, 1969: State deposited check for $17,800.60 (which sum included interest to March 3, 1969) with clerk of court.

March 3, 1970: Circuit court for Columbia county entered order dismissing complaint of plaintiffs.

From the order of dismissal, plaintiffs appeal.

David Bogue, Portage, for appellants; Vaughn S. Conway and Kenneth H. Conway, Baraboo, of counsel.

Robert W. Warren, Atty. Gen., Roy G. Mita, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

This is an action in equity to set aside a judgment for specific performance. ¹ Three distractive flourishes are added to it.

1. It is brought in a county other than the county in which the judgment was entered. ² Ordinarily, proceedings seeking the modification or setting aside of a judgment are to be '* * * a continuation of the action in which the judgment was rendered.' ³ When the passage of time makes an action in equity the only remaining way of challenging a judgment, the preferred forum status of the county or jurisdiction in which the judgment was entered remains. ⁴ When the action for equitable relief from a judgment is started somewhere else, it is '* * * subject to the defendants' right to have the case transferred. * * *' ⁵ Objection to trial in Columbia county having been raised by the defendant-respondent here, the case should have been transferred to Sauk county. Such transfer is not ordered for the reason that here it would mean no more than shipping a lifeless body to a mortician in another county for internment.

2. It has grafted onto it a cause of action for rescission of the original option to purchase and for what is referred to as 'reasonable rental' of the premises.' ⁶ The additional relief requested may have been added to give protective coloration to the claim that the action was properly triable in Columbia county. However, in the context here, both added claims derive from and depend upon a setting aside of the judgment for specific performance, and that exact judgment has been held not to constitute an action for the recovery of real estate. ⁷ The subject matter of the dispute between the parties in the original action was the contract between them, not the real estate. Now it is the judgment that resolved that dispute, no longer the option contract nor the real estate involved. The cause of action for rescission of contract is here no more than a setting forth of a possible consequence of a successful challenge to the judgment. In the context here, the claim of entitlement to compensation for use of the premises is no more than an additional relief requested if the judgment were set aside. As here pleaded or appended, it relates to and depends upon a setting aside of the judgment. It is the right of the plaintiffs to seek in equity the setting aside of that judgment that is the issue on this appeal.

3. It was brought against a defendant other than the holder of the judgment. For reasons left unexplained, the plaintiffs did not bring this successor action against the holder of the judgment, the State of Wisconsin. Instead, they brought it against the Division of Conservation, Department of Natural Resources. This led to a sharp dispute as to whether there was what the trial court termed '* * * any excess beyond the normal powers and activities of a state agency such as occurred in the Arthur case.' ⁸

That issue we do not reach and need not discuss. Rather we hold that a plaintiff in an action in equity seeking to set aside a judgment is required to bring such successor action against the party or parties in whose name such judgment was granted. The party seeking relief from a judgment is not entitled to add either issues or confusion by naming as the defendant someone other than the holder of the judgment. Here, where the judgment from which relief in equity was sought had been granted to the State of Wisconsin, there was no alternative to naming the State of Wisconsin as the defendant in an action to set aside that judgment. Failure to bring the action to set aside the judgment against the holder of the judgment of itself would require dismissal of this action. However, to base affirmance on this ground would invite plaintiffs to bring another action, this time around against the State of Wisconsin, to set aside the judgment. To do so, as we see it, would be to encourage plaintiffs to walk into a door that they have securely locked and barred against themselves.

The plaintiffs are barred by the doctrine of res adjudicata from seeking to set aside the judgment entered against them in 1966. In its opinion the trial court ruled that '* * * this issue of the judgment in Sauk County is res adjudicata as to all matters between the State of Wisconsin and the Plaintiffs(s) herein arising out of the option.' We agree that the plaintiffs here have placed this judgment beyond present or future attack or, at least, successful challenge.

Approximately nineteen months after this judgment was entered the State of Wisconsin sought to have the case reopened and the judgment modified to accommodate to a discrepancy in the legal description of the premises involved between the option contract and the judgment. The plaintiffs objected, asserting that the judgment was res adjudicatsa. When the trial court did modify the judgment, the plaintiffs appealed the ruling, maintaining that such modification was barred by the doctrine of res adjudicata. This court upheld the position of the plaintiffs and reinstated the original judgment. Eight days after the state's...