Hart v. Moulton

• Decision Date: 20 October 1899
• Citation: 104 Wis. 349,80 N.W. 599
• Parties: HART ET AL. v. MOULTON.
• Court: Wisconsin Supreme Court

104 Wis. 349

80 N.W. 599

HART ET AL.

v.MOULTON.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Syllabus by the Judge.

1. The provisional remedy in a replevin action under the Code, to obtain immediate possession of the subject of the controversy, is not essential to the commencement or maintenance of the action, hence any error in such proceeding does not affect the jurisdiction of the court to entertain such action and proceed therein to judgment.

2. One Nelson obtained possession of property from plaintiffs by inducing them by false representations to sell the same to him. Part of such property Nelson thereafter sold to innocent third persons, and the balance was taken on an execution issued to enforce a judgment against him. Subsequently, plaintiffs rescinded the sale for fraud and commenced this action against the officer to recover possession of the property held by him, and a second action against Nelson for damages in respect to the property that could not be recovered by reason of its having been sold by him to innocent third persons. The action for damages proceeded to judgment. Such judgment was offered in evidence on the trial in this action as binding upon the defendant, on the ground that he could claim no better right than Nelson. The evidence, on objection, was ruled out. Held, that the ruling was proper, first, because if defendant obtained any interest in the property in controversy, it vested in him before the commencement of the action against Nelson; and second, because the property in controversy in this action is not the same property in controversy in the action against Nelson.

3. The doctrine of res adjudicata extends to and binds privies of the parties to the litigation as well as the parties themselves, but privity, under such rule, exists only in relation to the subject-matter of such litigation. The decision in an action becomes a rule of property as to the subject-matter thereof and passes with it to all persons subsequently claiming under such parties, but does not attach to any other property, the limit of its effect as to privies being the limit of the particular property, property right, subject-matter, or thing, involved in the litigation.

4. A sale of property procured by false representations, and a purchase with existing intent on the part of the purchaser not to pay for the subject of his purchase, are distinct actionable wrongs. The former is complete without the existence of an intent not to pay for the property, and the latter is complete though there be no false representations to induce the sale. In case of the latter wrong, false representations and undisclosed insolvency are not necessary elements, but are evidentiary facts tending to establish the intent not to pay, though the latter of itself is not sufficient to establish such fact.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Harry Hart and others against Charles F. Moulton. Plaintiffs sold a quantity of merchandise on credit to one Cassius B. Nelson, a merchant. After the property had been added to Nelson's stock in his store and some portion of it sold, the entire stock was seized by the defendant, as sheriff, on an execution issued on a judgment against Nelson. Plaintiffs thereupon rescinded the sale upon the ground that they were induced to make it by Nelson's false representations. This action was then commenced to recover that portion of the property which could be identified in the hands of the sheriff, and an action was brought against Nelson for damages, there being some property that could not be found. The complaint in this action was in the usual form, in a replevin action. Proceedings to obtain immediate possession of the subject of the action were taken and the object of such proceedings accomplished. Defendant moved the court to quash the proceedings for the provisional remedy and to dismiss the action, because the person who made the affidavit was not one of the plaintiffs, and it did not state that such person was authorized so to do, or the means or source of his information, or that the property was within the jurisdiction of the court; and further, because the affidavit did not contain a description of the property, and the requisition to the officer to take the property from the defendant and deliver the same to the plaintiffs, was indorsed on the back of a wrapper attached to, instead of on, the affidavit, and the officer to whom the papers were delivered did not indorse his approval of the bond at the time of or before the date of service. The court denied the motion, holding the papers substantially perfect except for the failure to state why the affidavit was not made by one of the plaintiffs and that the person making it was authorized so to do, and the source of his knowledge, which defects were held curable by amendment. Leave to make the necessary amendment to accord with the court's ruling was granted. Both parties filed exceptions to such ruling. Plaintiffs did not amend the affidavit. Defendant answered, putting in issue the allegations of the complaint, justifying under the execution against Nelson, under which the property was seized as before stated, and pleading in abatement the same defects in the papers used to obtain possession of the property which were urged on the motion before referred to. The plea in abatement was held bad on demurrer. On the trial a judgment rendered in the action against Nelson for damages, and the record in such action, were offered in evidence, and on objection by the defendant were rejected. The trial resulted in a verdict and judgment for defendant, from which plaintiffs appealed. Reversed.Tenney, Hall & Tenney, for appellants.

Bashford, Aylward & Spensley, for respondent.

MARSHALL, J. (after stating the facts).

Respondent's attorneys urge that appellants have no standing in this court because the lower court failed to obtain jurisdiction of the subject-matter of the action for want of a proper affidavit in the proceedings to obtain possession of the property in advance of a settlement of the controversy between the parties, and because of some other defects claimed in such proceedings. The learned counsel for respondent rely on the rule that prevailed in the action of replevin at common law, which could be commenced only by the issuance of a writ of replevin. The writ being essential to the commencement of the action, everything necessary to the issuance thereof was deemed jurisdictional. Such is now the case in actions in justice court for the recovery of personal property and actions there commenced by writ of attachment. But it hardly admits of serious discussion, at this late date, but that such an action in the circuit court, commenced by the service of a summons like any other action, and proceedings to obtain possession of the subject of the controversy in advance of the judgment, are sufficiently independent of each other that the latter may be omitted entirely at the election of the plaintiff. The statute on the subject is so plain, and the long-settled practice so well understood by the profession, that we hardly feel justified in going much further on this branch of the case than to refer to such statute. Section 2717, Rev. St., provides that “the plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons or at any time before answer, claim the immediate delivery of such property.” It will be noted that the very language of the section indicates unmistakably that the action may be commenced and immediate possession of the property not be claimed at all. The section that follows governs the proceedings under the quoted section and requires substantially the same affidavit as was formerly required to secure a writ of replevin The mere indorsement upon, in connection with, the affidavit, requiring the sheriff to take the property from the defendant and deliver the same to the plaintiff serves all the purposes of a writ not covered by the summons and the service of it. The distinction between the old action of replevin and the action under the Code has been many times pointed out by this court. Dudley v. Ross, 27 Wis. 679;Bigelow v. Doolittle, 36 Wis. 115;Brewster v. Carmichael, 39 Wis. 456. Where the property in a replevin action is taken and afterwards returned to the defendant and retained by him, or where it is not taken at all and is not recovered by the judgment, the action results substantially the same as an action of trover.

The judgment in this action against Nelson was properly rejected because the defendant was not in privity with him for two reasons: First, because the defendant's interest in the property, if he obtained any at all under the execution, was acquired before the commencement of the action against Nelson; and second, because the property involved in this action is not the property involved in that action.

It is unquestionably the law that a judgment of a court of competent jurisdiction is binding between the parties to the particular cause of action litigated regarding the subject thereof, either as a plea in bar or evidence in estoppel, not only as to every question actually presented and considered, and upon which the court rested its decision, but every point within the issues that might have been presented and decided in the cause, and is likewise conclusive in any subsequent cause of action between the same parties upon a different subject-matter, as to every question actually litigated and decided in the former action. Wentworth v. Racine Co., 99 Wis. 26, 74 N. W. 551;Cromwell v. Sac Co., 94 U. S. 351; Davis v. Brown, Id. 423; Campbell v. Rankin, 99 U. S. 261;Nesbit v. Riverside Independent Dist., 144 U. S. 610, 12 Sup. Ct. 746. It is further the law that a judgment is as binding on privies as on parties, as to questions actually decided and upon which the judgment rests, whether it be rendered on...