Geo. Walter Brewing Co. v. Henseleit

• Decision Date: 03 October 1911
• Citation: 146 Wis. 666,132 N.W. 631
• Parties: GEO. WALTER BREWING CO. v. HENSELEIT ET AL.
• Court: Wisconsin Supreme Court

146 Wis. 666

132 N.W. 631

GEO. WALTER BREWING CO.

v.HENSELEIT ET AL.

Supreme Court of Wisconsin.

Oct. 3, 1911.

Appeal from Municipal Court, Outagamie County; Thomas H. Ryan, Judge.

Action by the George Walter Brewing Company against John Henseleit and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

This is a creditors' action to set aside the conveyance of real estate and sale of personal property by John Henseleit to his son, August Henseleit, in 1900, as fraudulent against creditors. The present action is by the Geo. Walter Brewing Company, the assignee of Christian Walter, as trustee of the estate of Geo. Walter, deceased. The defendants Algrim are made parties to the action solely because, in 1907, they purchased a portion of the real estate conveyed. June 15, 1903, a creditors' action was begun by Christian Walter, as trustee, against John and August Henseleit, involving the same subject-matter. Issue was joined therein. On December 2, 1908, on motion of August Henseleit, the action was dismissed as to him by the court, pursuant to section 2811a, Stats. 1898, because it had not been brought to trial within five years after its commencement. Section 2811a reads as follows: “The circuit courts and the superior courts may dismiss, upon their own or upon the motion of either party and with or without notice, any and all actions or proceedings pending therein in which issue shall have been joined and which shall not be brought to trial within five years from and after the commencement of such action or proceeding.” No appeal was taken from the judgment of dismissal. The pendency and dismissal of such action was, among other defenses, pleaded in bar of the present action. The trial court held that the dismissal of the former action was no bar to the maintenance of the present one, but found for the defendants on the merits. From a judgment entered accordingly, plaintiff appealed.Humphrey Pierce, for appellant.

Francis J. Rooney and A. M. Spencer, for respondents.

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

Defendants claim that the dismissal of the former suit begun by plaintiff's assignor against John and August Henseleit, and involving the same cause of action, is a complete bar to the prosecution of the present one; that such judgment of dismissal was a final determination as to any rights the plaintiff may have had against the defendant August Henseleit, and, since he is a necessary party to the present action, it cannot be maintained. Plaintiff contends that such dismissal is not a bar, because there was no hearing had on the merits, but only a dismissal upon an ex parte motion, and that such dismissal leaves all matters unsettled, and places the parties in the same position they occupied before the litigation began, and the cases of Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075,Fischbeck v. Mielenz, 119 Wis. 27, 96 N. W. 426,Spear v. Door County, 65 Wis. 298, 27 N. W. 60,Wakeley v. Delaplaine, 15 Wis. 554, and State ex rel. Kane v. Larrabee, 3 Pin. 166, are cited to sustain the contention.

In Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075, there was a judgment of dismissal entered upon a stipulation of the parties. In Fischbeck v. Mielenz, 119 Wis. 27, 96 N. W. 426, it was held that the withdrawal of a claim presented in assignment proceedings and the entry of an order or judgment, to the effect that the claim was withdrawn and all proceedings thereon dismissed, was in the nature of a voluntary nonsuit, and that such withdrawal did not prevent the claimant from afterwards maintaining an action upon such claim. In Spear v. Door County, 65 Wis. 298, 27 N. W. 60, plaintiff began an action to set aside certain assessments upon real estate. Afterwards the property was reassessed. The first action was dismissed, and a subsequent action was brought to set aside the reassessment. It was held that the former action was no bar to the bringing of another action, partly because it did not appear that the former action was dismissed by reason of any fault on the part of the plaintiff, and partly because the second action was not upon the same cause as the first. In Wakeley v. Delaplaine, 15 Wis. 554, there was a judgment of dismissal, pursuant to a stipulation of the parties. In State ex rel. Kane v. Larrabee, 3 Pin. 166, there was a dismissal of a bill in equity, on the ground that no one appeared on behalf of complainant when the case came up for hearing in its order on the calendar, and it was held that such dismissal was not a bar to another suit for the same cause.

It will thus be seen that all the cases cited by plaintiff relate, either to the voluntary dismissal of an action or withdrawal of a claim or to a dismissal pursuant to a stipulation, or to a different cause of action than the one dismissed, or to a mere dismissal for want of prosec...