Ketchum v. Breed
| Decision Date | 10 January 1882 |
| Citation | 54 Wis. 131,11 N.W. 238 |
| Parties | KETCHUM v. BREED. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waupaca county.
G. W. Cate, for respondent.
E. Mariner and F. W. Hoyt, for appellant.
This is an appeal from an order refusing to dissolve an injunction restraining the defendant, Breed, from collecting a judgment which he had obtained against the plaintiff and others. The judgment was rendered on the twelfth day of February, 1880, for the deficiency in a foreclosure action. At the next term of court the plaintiff moved on affidavits to set aside the judgment and for a new trial, setting forth the reasons why he failed to be present at the trial and make his defence, claiming that he had established a case of excusable neglect under the statute. The motion to set aside the judgment was denied, and on appeal that order was affirmed by this court. 51 Wis. 164; [S. C. 7 N. W. REP. 550.] The complaint and accompanying affidavit upon which the injunction was granted set forth substantially the same facts as those stated in the affidavits used on the motion to set the judgment aside.
The defendant's counsel claims that there is no equity in the complaint, and that this is practically an attempt to retry the former case. We think counsel is clearly correct in that view of the case. All the material matters stated in the complaint as a ground for relief against the judgment were necessarily involved in the former appeal, and were decided adversely to the plaintiff. Therefore, upon well-settled principles, that adjudication is conclusive and binding upon him; he cannot in this manner retry the question, whether he was personally liable to pay any deficiency arising on a sale of the mortgaged premises or not. That matter is res adjudicata. Among other papers used on the motion to vacate the injunction herein, were the original pleadings, affidavits, and proceedings in the former case. And it plainly appears from these papers that one issue made on the complaint and answer of this plaintiff in the foreclosure action, was whether the latter agreed and became bound to pay, when he purchased the mortgaged property of Wakefield, the Rich mortgage as a part of the purchase money. That issue was decided against him. It is true, he moved to set aside the judgment, because, for the reasons stated in his affidavits, he failed to be present and produce his evidence upon the trial. But this court said he showed no sufficient...
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Provost v. Swinson
... ... determination of the court, it is as much res adjudicata as a ... [109 Fla. 49] formal judgment would be. In Ketchum v ... Breed, 54 Wis. 131, 11 N.W. 238, it is held that, the ... defendant's liability for any deficiency upon a ... foreclosure sale having been ... ...
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Schrader v. Smith
...equitable relief, and waiving the question of whether or not the matters set out in the counterclaim are res adjudicata (Ketchum v. Breed, 54 Wis. 131, 11 N. W. 238), we are of the opinion that they cannot be pleaded as a defense in the garnishment proceedings. [3] For the reason that a gar......
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Witter v. Neeves
...so to be rendered is a final determination of the court, it is as much res adjudicata as a formal judgment would be. In Ketchum v. Breed, 54 Wis. 131, 11 N. W. Rep. 238, it is held that, the defendant's liability for any deficiency upon a foreclosure sale having been put in issue by the com......
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Ketchum v. Breed
...and some of them from the records of this court in the same litigation. Breed v. Ketchum, 51 Wis. 164;S. C. 7 N. W. Rep. 550;Ketchum v. Breed, 54 Wis. 131;S. C. 11 N. W. Rep. 238. February 21, 1875, Horace H. Rich, John W. Stillman, and Martin Rich executed and delivered to Breed their prom......