Egaard v. Sch. Dist. No. 5 of Town of St. Joseph

• Decision Date: 26 February 1901
• Citation: 109 Wis. 366,85 N.W. 369
• Parties: EGAARD ET AL. v. SCHOOL DIST. NO. 5 OF TOWN OF ST. JOSEPH ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 366

85 N.W. 369

EGAARD ET AL.

v.SCHOOL DIST. NO. 5 OF TOWN OF ST. JOSEPH ET AL.

Supreme Court of Wisconsin.

Feb. 26, 1901.

Appeal from circuit court, St. Croix county; E. W. Helms, Judge.

Action by E. Egaard and others against school district No. 5 of the town of St. Joseph and others. From a judgment in favor of a part of the defendants, plaintiffs appeal. Reversed.

This action was brought by the plaintiffs, as taxpayers, on behalf of themselves and others, against school district No. 5 of the town of St. Joseph, in St. Croix county, the individual members of the town board as such, and against Peter Kircher, Michael Dahlke, and Mary Dahlke. The complaint alleged that on January 3d the district meeting designated a site for a school house at the center of section 6, and authorized the purchase of the land and building a school house there; that, in defiance of this instruction, the defendants Michael Dahlke and Mary Dahlke with full knowledge unlawfully sold to the board, for a valuable consideration, a parcel of land in section 5, about half a mile distant, for the purpose of defrauding the taxpayers of the district and defeating the will of the legal voters; that the district board had entered into contract with the defendant Kircher for the building of a school house on such unlawful site, and that he was proceeding thereto. The relief demanded was the enjoining of all further proceedings, and the rescinding and cancellation of the purchase from the Dahlkes, and return to the district of the consideration paid therefor. Michael Dahlke was one of the district board, to wit, the treasurer, and was joined as defendant in that capacity as well as personally. The district and the district board answered, the defendant Kircher defaulted, and Michael and Mary Dahlke, in their personal capacity, demurred on the ground that the complaint fails to state a cause of action, and for misjoinder of causes of action. Their demurrer was sustained on June 26, 1900. On October 2, 1900, judgment was entered upon stipulation against the defendant school district and in favor of the plaintiffs for costs. On October 20, 1900, the defendants Michael and Mary Dahlke moved for judgment in their favor on notice and application showing that no amendment of the complaint had been made, and accordingly judgment was entered in favor of such defendants and against the plaintiffs for $37 costs, but making no reference to any of the other defendants, to wit, the three members of the school board and the defendant Kircher. From that judgment the plaintiffs appeal.A. J. Kinney, for appellants.

Baker & Haven, for respondents.

DODGE, J. (after stating the facts).

Two grounds of error are assigned on this appeal: (1) That the judgment is irregular and erroneous, in that it does not dispose of the whole action; (2) that the demurrer was erroneously sustained.

1. The judgment appealed from cannot be sustained upon any theory. It adjudicates only with reference to the two defendants Michael and Mary Dahlke in their individual capacity, and leaves unadjudicated the controversy between the plaintiffs and all of the other defendants except the school district, against which separate judgment had already been rendered. It matters not whether the previous judgment in favor of the plaintiffs and against the defendant school district was proper or improper, the fact still remains that there are numerous other defendants whose rights must be disposed of in order to finally determine this action. The practice under our Code contemplates and permits but a single judgment in an action. Trustees of St. Clara Female Academy of Sinsinawa Mound v. Delaware Ins. Co., 93 Wis. 57, 66 N. W. 1140;Hyde v. Bank, 96 Wis. 406, 71 N. W. 659;Allen v. Boberg (Wis.) 84 N. W. 421. This rule is general and universal, except as contrary practice is expressly authorized by section 2883, Rev. St. 1898. That statute permits no separate judgment in favor of individual defendants. It provides: “In an action against several defendants the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper.” The judgment appealed from is not against, but in favor of, certain defendants, and therefore does not come within the statutory permission to vary from the general rule above stated. No judgment awarding these defendants the relief which this accords could properly have been entered until the rights as between plaintiffs and all the other defendants had been ascertained, so that a...