Duthie v. Town of Washburn

88 Wis. 597 | Wis. | 1894

Newman, J.

The circuit court, before the entry of judgment upon the verdict, should have set aside the verdict and have granted a new trial, on the motion of .the defendant the town of Washburn. That is settled by the decision of this court. Duthie v. Washburn, 87 Wis. 231. Probert was a party to that motion. He was at least, if not a party, a privy, to the appeal. He had a right to be heard upon the appeal. Hunter v. Bosworth, 43 Wis. 583, 590. He was heard by his counsel on the argument before this court. He had his day in court upon the appeal. The judgment was reversed, and the cause remanded for a new trial in the circuit court. This is construed to mean and intend a new trial as to all the parties and as to all the issues involved between the parties. This construction is proper, and perhaps necessary, in order to prevent inconvenience, and perhaps injustice, by discharging Probert from the action before the rights of all the parties are settled and determined. It is the policy of the law, in this class of actions, to require the plaintiff to enforce his remedies against the party who is primarily or ultimately liable for his damages. And he may be required, in a proper case, to join such party as a defendant with the municipality. Laws of 1889, ch. 471; Hiner v. Fond du Lac, 71 Wis. 74. In order to insure complete justice and avoid inconvenience, he should remain a party until the ultimate rights of all the parties are finally settled and determined. This court, on the former appeal, had power to direct the circuit court to do what it should have done before,— to set aside the verdict and grant the motion for a new trial. This it in effect did. “ Upon ap appeal from a judgment . . . the supreme court may reverse, affirm, or modify the judgment . . . as to any or all of the parties; and may, if necessary or proper, order a new trial.” E. S. sec. 3071.

By the Oourt.— The order of the circuit court is affirmed.