Gohr v. Spaete

• Decision Date: 09 April 1957
• Parties: Ernst GOHR, Appellant, v. Paul R. SPAETE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 300

82 N.W.2d 300

275 Wis. 520

Ernst GOHR, Appellant, v. Paul R. SPAETE et al., Respondents.

Supreme Court of Wisconsin.

April 9, 1957.

S. P. Rigler, Rice Lake, Daniel I. D'Amico, Cumberland, for appellant.

Francis R. Parks, Rice Lake, for Carl and Elta Gohr.

BROADFOOT, Justice.

The case presents another chapter in an unfortunate quarrel between two brothers. This is the third time they have appeared before this court in actions concerning the title to 80 acres of land in Barron county. Our prior decisions are reported in Beranek v. Gohr, 260 Wis. 282, 50 N.W.2d 459 and Gohr v. Beranek, 266 Wis. 605, 64 N.W.2d 246. The facts will not be repeated.

The first action was brought to quiet title to the premises as against Carl Gohr, who counterclaimed and contended that he was that owner of the premises by virtue of an oral agreement which had been sufficiently performed to warrant specific performance. We held that there had been insufficient performance therefor, leaving title to the premises in one Beranek subject to Carl Gohr's mortgage and a second mortgage to Ernst Gohr.

The second action was to foreclose the second mortgage given by the Beraneks to Ernst Gohr. Upon remand of the record in the first case Ernst Gohr, by motion, asked for leave to try his claim for an accounting for rents and profits against Carl Gohr. This motion was denied by the trial court. In the second action, which was brought to foreclose the Beranek mortgage, there was an attempt to inject the question of an accounting with Carl Gohr. That relief was denied and this court affirmed the determination of the trial court.

In the present action the defendant Carl Gohr sets out the decisions in the first two cases and alleges as a defense that because thereof the subject matter of the present action has been fully adjudicated and that the prior actions are a bar to the commencement of this action under the doctrine of res judicata. The order appealed from determined that the question of accounting for rents and profits was res judicata. Because of the way in which the issue was presented in the first two cases the matter of an accounting has become res judicata to the date of the judgment in the second action, which was September 15, 1953.

Although the defendant Carl Gohr has not so pleaded, it seems evident that he is a mortgagee in possession. Citizens Saving & Trust Co. v. Rogers, 162 Wis. 216, 155 N.W. 155; Schwartzburg v. Rahtjen, 227 Wis. 525, 279 N.W. 19; 59...