Walker v. Rockman

• Decision Date: 24 February 1914
• Citation: 156 Wis. 190,145 N.W. 766
• Parties: WALKER ET AL. v. ROCKMAN.
• Court: Wisconsin Supreme Court

156 Wis. 190

145 N.W. 766

WALKER ET AL.

v.ROCKMAN.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Barron County; Frank A. Ross, Judge.

Action by Cornelia Walker and others against N. M. Rockman. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is an action of ejectment in which the plaintiffs claim title and right of possession. The answer denied the allegations of the complaint and set up title in the defendant under certain tax deeds and demanded judgment decreeing that the title and right of possession were in the defendant. At the close of plaintiffs' testimony the defendant moved for judgment dismissing the complaint because plaintiffs had failed to establish title in themselves. The court granted the motion and as a conclusion of law found that the defendant was entitled to judgment dismissing the action upon the merits and that the defendant recover costs. A judgment was accordingly entered on November 11, 1912, which adjudged that the action be dismissed upon the merits. On December 5, 1912, one of the attorneys for the plaintiffs filed an affidavit reciting that the costs had been paid and that plaintiffs applied for a new trial in the action as allowed by law. Thereafter, on December 6, 1912, the court entered an order vacating the judgment and granting a new trial upon condition that the plaintiffs execute and file an undertaking with sufficient sureties in the sum of $200, to the effect that they would pay all costs and damages which might be finally awarded to the other party in the action; such sureties to justify their responsibility as required by law. This order was entered without notice to the defendant or his attorney. It appears by inference that an undertaking was filed, but through some oversight the same was not returned with the record to this court. The case was noticed for trial at the March, 1913, term of the circuit court for Barron county, and thereupon the defendant moved for an order vacating and setting aside the order granting a new trial; the defendant appearing specially for the purpose of making such motion. The grounds on which it was sought to set aside the order were as follows: (1) The court had no power to make the same, and the order was erroneous because the plaintiffs were not entitled to a new trial. (2) No notice of the application for a new trial was served on defendant or his attorney. (3) The order as granted was inoperative as an order vacating the judgment and granting a new trial. (4) Neither the order nor a copy thereof was served on the defendant or his attorney. (5) The undertaking authorized by the order was not served upon the defendant or his attorney, nor was the undertaking nor the responsibility of the sureties approved by the court or judge. (6) The application and affidavit upon which the order was based were insufficient to authorize any order affecting the judgment.

The defendant's motion was denied, and thereupon the defendant refused to take any part in the trial of the action. The plaintiffs submitted their proofs to the court, and upon them the court made findings of fact and conclusions of law upon which judgment was entered in favor of the plaintiffs and against the defendant, adjudging the plaintiffs to be the owners of and entitled to the property in controversy. The defendant appeals from this judgment.W. F. Bailey, of Eau Claire, for appellant.

Coe Bros., of Barron, for respondents.

BARNES, J. (after stating the facts as above).

[1] The judgment first entered was in form one on the merits, and we think it is quite clear that it was so in fact. Amory v. Amory, 26 Wis. 152;Williams v. Hayes, 68 Wis. 248, 32 N. W. 44;National F. & P. Works v. Oconto City W. S. Co., 105 Wis. 48, 58, 81 N. W. 125;Durant v. Essex County, 7 Wall. 107, 19 L. Ed. 154;Swan L. & C. Co. v. Frank, 148 U. S. 603, 13 Sup. Ct. 691, 37 L. Ed. 577. The contentions that under sections 3084, 3086, and 3092, St. 1913, a judgment of nonsuit only could have been granted in this case is not correct. Section 3084 deals with the form of verdicts in ejectment actions and does not affect the question, because a jury was waived and the case was tried by the court. Section 3086 provides that the judgment shall be entered in accordance with the verdict or decision of the court. The judgment was entered in conformity with the court's decision. There is nothing that can be read out of section 3092 prohibiting the entry of a judgment other than one of nonsuit, where the plaintiff fails to establish title in an ejectment action. Nor has this court decided that the judgment here rendered was improper. On the contrary, it has decided that such a judgment may be entered. Menominee R. L. Co. v. Seidl, 149 Wis. 316, 135 N. W. 854. The case of Comstock v. Boyle, 134 Wis. 613, 114 N. W. 1110, 126 Am. St. Rep. 1033, cited by the appellant as holding that the only proper judgment to render in the case before us was one of nonsuit, does not so hold. There the answer was a general denial. Defendant did not, as here, set up title in himself and ask for a dismissal of the complaint on the merits. The plaintiff failed...