Grunert v. Spalding

• Decision Date: 20 October 1899
• Parties: GRUNERT v. SPALDING ET AL.
• Court: Wisconsin Supreme Court

104 Wis. 193

80 N.W. 589

GRUNERT

v.SPALDING ET AL.

Supreme Court of Wisconsin.

Oct. 20, 1899.

On motions for rehearing. Former judgment reversed, and judgment below affirmed.

For former opinion, see 78 N. W. 606.Hooper & Hooper and E. C. Eastman, for appellants.

Greene, Vroman, Fairchild, North & Parker, for respondent.

WINSLOW, J.

Motions for rehearing were made in the present case by both parties, and upon consideration a rehearing was ordered upon the single question of the effect of the judgment in the case of Fletcher against Coleman. It was, in effect, assumed in the former opinion that it appeared in the case of Fletcher against Coleman that Coleman held tax certificates upon the lands included in the first and second causes of action in this case, and hence that it appeared affirmatively from the record that the judgment in that case necessarily decided, as between Fletcher and Coleman, that Coleman's certificates thereon were void, because the lands were exempt from taxation in the year 1875. In justice to ourselves, it ought to be said that this assumption was entirely justified by the original briefs furnished us and the oral arguments made upon the first hearing. Upon the respondent's motion for rehearing, however, it was urged (as the fact is) that two classes of lands were involved in the prior action, which were described in two exhibits attached to the complaint; Exhibit A covering lands earned in 1867, upon which Fletcher already held patents (which include the lands now under consideration), and Exhibit B, covering lands which had not yet been patented, but which were alleged to have been earned in 1868, and of which the state was alleged to hold title in trust for Fletcher, and which are not involved in the present litigation. In connection with this fact, our attention was called to the further fact that the complaint in the prior action did not specifically charge that Coleman possessed any certificates upon the lands now involved, or upon any definite parcels of land, but simply charged that there had been tax sales of all the lands of both classes, and certificates issued thereon, “which certificates now belong to said county, or to some of the defendants, and some of which certificates belong to each of the defendants in this action; but which of such certificates belong to said county and which to the other defendants this plaintiff cannot state.” No evidence having been preserved in the record of that case, and the finding being simply a general one to the effect that all the allegations of the complaint were true, and that the lands described in two certain patents executed by the state to Fletcher were exempt from taxation, the argument of the respondent was that it does not appear that the question whether the lands described in the first and second causes of action in the present action were exempt was ever in fact litigated or decided as between Fletcher and Coleman. It was admitted by respondent that the lands in question here were included in the first patent named in that judgment, and were the lands described in Exhibit A in that case; but, it appearing by the findings that the second patent was issued after the commencement of that action, and covered lands patented in lieu of the lands alleged to have been earned in 1868, and described in Exhibit B, the argument was also made that, the patents not being before the court, the judgment did not in fact adjudicate as to the lands described in Exhibit B at all, and that the certificates held by Coleman might well have covered only lands named in Exhibit B, as to which lands...