Sickelsteel v. Malick

• Decision Date: 14 October 1924
• Citation: 200 N.W. 379,185 Wis. 323
• Parties: SICKELSTEEL v. MALICK ET AL.
• Court: Wisconsin Supreme Court

185 Wis. 323

200 N.W. 379

SICKELSTEEL

v.MALICK ET AL.^a1

Supreme Court of Wisconsin.

Oct. 14, 1924.

Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.

Action by D. I. Sickelsteel against J. P. Malick and others, wherein J. R. Lamb filed cross-complaint against C. B. Shoemaker and others. From judgment rendered, cross-defendants appeal. Reversed, with directions to dismiss.Jeffris, Mouat, Oestreich, Avery & Wood and E. H. Ryan, all of Janesville, for appellants.

F. C. Burpee, of Janesville, for respondent.

CROWNHART, J.

This case is the sequel to the case of the same title reported in 158 Wis. 122, 147 N. W. 1024. There the facts are set out in detail and may be referred to without repeating them here. In that case there were two appeals involving three parties out of a large number of litigants in the circuit court. This court there rendered judgment opening up the circuit court judgment for cross-complaints in favor of certain parties and against other parties not before the court on appeal. This case is the result of a cross-complaint, filed by the respondent here, pursuant to that decision.

[1] At the outset the decision of this court on the former appeal is challenged as being without the jurisdiction of the court. It is claimed that this court had not the jurisdiction or power to render judgment binding on parties not before it as either appellants or respondents, and to this point the arguments of counsel are chiefly directed. Section 2405m, Stats., provides:

“Sec. 2405m. In any action or proceeding brought to the Supreme Court by appeal or writ of error, if it shall appear to that court from the record, that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the Supreme Court may in its discretion reverse the judgment or order appealed from, regardless of the question whether proper motions, objections, or exceptions appear in the record or not, and may also, in case of reversal, direct the entry of the proper judgment or remit the case to the trial court for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court. not inconsistent with the statutes governing legal procedure, as shall be deemed necessary to accomplish the ends of justice.”

Also, see section 3071.

[2] This section seems to cover the question as to the authority of this court in entering the judgment that it did on the former appeal. It has been frequently held that in such a case all the parties to the circuit court judgment are privies to the proceeding in the Supreme Court, notwithstanding their failure to be parties to the appeal, and hence bound by the judgment of the Supreme Court, This seems to be well settled by the authorities. Hunter v. Bosworth, 43 Wis. 583, 590;Duthie v. Town of Washburn, 88 Wis. 597, 60 N. W. 1053;Will of Rice, 150 Wis. 401, 480, 136 N. W. 956, 137 N. W. 778;Pietsch v. McCarthy, 159 Wis. 251, 254, 150 N. W. 482.

[3] Moreover, it is well settled that whenever legal propositions are laid down upon an appeal to this court, they become the law of the case upon all future trials or appeals, whether right or wrong. John v. Pierce, 176 Wis. 220, 186 N. W. 600. The judgment of this court on former appeal is not open to objection.

[4] The appellant also claims that the proceedings were barred by section 3072, Stats. That section reads as follows:

“In every case in error or on appeal in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceeding had thereon within one year from the date of such order in the Supreme Court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order in his favor in the court below is reversed by the Supreme Court on the appeal of the opposing party to pay the clerk's fees on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal, unless the same be continued for cause, and if he fail so to do, his action shall be dismissed.”

The final judgment on the former appeal was rendered in this court on December 23, 1914. Within the year the record was remitted to the circuit court, and a cross-complaint on the part of the respondent Lamb was served on parties who are not parties to this appeal, through George Sutherland, his attorney. Nothing further seems to have been done for a long time thereafter until Mr. Burpee was substituted as attorney for Lamb. He then served a cross-complaint on the attorneys for the appellants herein. To that cross-complaint the appellants demurred, which demurrer was overruled. They thereupon served an answer and set up as one of their defenses the section of the statutes quoted, section 3072....