Gratz v. Parker
| Decision Date | 27 November 1908 |
| Citation | 137 Wis. 104,118 N.W. 637 |
| Parties | GRATZ v. PARKER ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.
Action by Augusta M. Gratz against Adeline Parker and another. From an order requiring defendant Parker to submit to an examination as an adverse party, she appeals. Affirmed.
This is an appeal from an order of the circuit court of Waukesha county, requiring the defendant, Adeline Parker, to submit to an examination as an adverse party under the provisions of section 4096, St. 1898, in order to enable the plaintiff to frame her complaint. The affidavit setting forth the points upon which discovery was sought, recited, among other things, that the action was brought by the plaintiff to recover of the defendants, and each of them, the value of certain goods, wares, and merchandise which were stored by the plaintiff in the house occupied by the defendants, and which were, during the month of June or July, 1906, removed from the boxes, trunks, etc., in which said goods were packed, and also to recover the value of certain goods contained in a satchel left by the plaintiff in the room occupied by her in the house occupied by the defendants, which goods were removed from said satchel on or about July 1, 1906, and that discovery was sought under said section 4096 to enable the plaintiff to plead. Then followed a statement of the points upon which the plaintiff sought to examine the defendant Adeline Parker. The appellant procured an order to show cause why the plaintiff should not be restrained from examining her, and also requiring the plaintiff to show cause why, if such examination were permitted, its scope should not be limited. Upon the hearing of said order to show cause, the order appealed from was entered, such order requiring the appellant to submit to an examination, but materially limiting the scope of such examination.V. H. Tichenor, for appellant.
Holt & Coombs, for respondents.
BARNES, J. (after stating the facts as above).
The appellant insists that the order appealed from is erroneous (1) because a former judgment, rendered in an action brought by the same plaintiff against the defendant, Adeline Parker, upon the same cause of action, is res adjudicata as to the rights of the parties, and no examination should be permitted; (2) because the affidavit upon which the order for examination was based fails to state facts sufficient to constitute a cause of action; and (3) because the affidavit fails to allege that the facts upon which the testimony of the defendant is sought are not within the personal knowledge of the plaintiff.
1. The judgment rendered in the former action was entered as the result of a motion for a nonsuit, made by the defendant at the close of the plaintiff's testimony, and before the defendant rested her case or offered any evidence. It was rendered because the trial court was of the opinion that, upon the showing made by the plaintiff, she was guilty of contributory negligence. This was not a judgment of dismissal on the merits, but a judgment of involuntary nonsuit. Such a judgment is not a bar to another action brought upon the same grounds. The decided cases in this court are clear and uniform in so holding. Gummer v. Trustees of the Village of Omro, 50 Wis. 247,...
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Am. Food Prods. Co. v. Am. Milling Co.
...to constitute a cause of action, nor is it even necessary that the respondent should know that a cause of action exists. Gratz v. Parker, 137 Wis. 106, 118 N. W. 637. Of course, if the affidavit affirmatively shows that no cause of action exists, the examination will be denied. Madison v. M......
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Krueger v. Winters
...is not a bar to another action upon the same cause. Gummer v. (Trustees of Village of) Omro, 50 Wis. 247, 6 N.W. 885; Gratz v. Parker, 137 Wis. 104, 118 N.W. 637.' 'In 2 Black, Judgments (2d ed.), sec. 699, p. 1051, the author "It is a settled and inflexible rule that a judgment of nonsuit ......
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Mayer's Estate, In re
...(1914), 157 Wis. 312, 315, 147 N.W. 632; State ex rel. Faber v. Hinkel (1907), 131 Wis. 103, 109, 111 N.W. 217; Gratz v. Parker (1908), 137 Wis. 104, 106, 118 N.W. 637. ...
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Sullivan v. Ashland Light, Power & St. Ry. Co.
...to plead, that is sufficient. It is not necessary that facts sufficient to constitute a cause of action be stated. Gratz v. Parker, 137 Wis. 104, 118 N. W. 637. Nor is it even necessary that the plaintiff should know that a cause of action exists. Schmidt v. Menasha W. W. Co., supra; Elling......