Lowe v. Laursen

• Citation: 230 N.W. 75,201 Wis. 309
• Parties: LOWE v. LAURSEN ET AL.
• Decision Date: 01 April 1930
• Court: Wisconsin Supreme Court

201 Wis. 309

230 N.W. 75

LOWE

v.LAURSEN ET AL.

Supreme Court of Wisconsin.

April 1, 1930.

Appeal from an order of the Circuit Court for Eau Claire County; R. S. Cowie, Judge. Reversed.

Action by Harry L. Lowe against L. A. Laursen and others. From an order dismissing the plaintiff's action, plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded.

Action begun February 12, 1927; order entered July 24, 1929. The plaintiff began two identical actions against the defendants and certain rubber companies. One action was commenced in the circuit court for Eau Claire county in connection with which there were certain garnishee proceedings. The other action was commenced in the United States District Court for the Northern District of Ohio, Eastern division, at Cleveland, Ohio. Among other items involved in the controversy was one for more than $4,000, being the purchase price for a Duesenberg car. It appears that the action in the United States District Court was tried and a decree entered therein under date of June 9, 1927. In that action the court found, among other things, that the plaintiff's version of the transaction in regard to the Duesenberg car was the true one, but the court, prior thereto, having expressed the opinion that the facts in relation to the Duesenberg car transactions sustained a legal and not an equitable claim, the matter could not be determined in that action without an express waiver of the right of trial by jury on the part of the defendant Laursen. To this the defendant Laursen refused to agree. Consequently, no findings were made in respect thereto and the judgment made no determination in respect to such matter.

Thereafter, and on September 13, 1927, the attorneys for the parties entered into a stipulation wherein it was agreed, among other things, that certain matters having been determined in the United States District Court, the complaint in the action in the circuit court for Eau Claire county should be amended so as to strike out all allegations relating to the matters so determined, leaving for determination in the circuit court for Eau Claire county the issue with respect to the Duesenberg car transaction. However, the plaintiff took an appeal from the decision of the District Court and assignment of error number 14 was as follows:

“The trial court erred in denying to plaintiff the right of accounting for the amount plaintiff had advanced for the purchase of the Duesenberg car, namely $4144.00 out of defendant L. A. Lauersen's share of the royalties received upon the license contracts.”

The defendants moved that the action pending in the circuit court for Eau Claire county be dismissed on the ground that the issues therein had been determined in the action in the federal court. Upon consideration of the whole matter, the trial court entered an order dismissing the plaintiff's action, from which the plaintiff appeals.Stolts & Crocker, of Eau Claire, and Burch, Bacon & Denlinger, of Akron, Ohio, for appellant.

Robinson & Parsons, of Holland, Mich.,...