131 Wis. 261 | Wis. | 1907
If we assume as most favorable to tbe appellant that there was evidence tending to show that tbe defendant, through McCormick, purchased these county orders from the plaintiff and agreed to pay $2,500 therefor, there still remain many insuperable legal obstacles to the plaintiff’s recovery. One is that, the county orders so sold having been adjudged in the taxpayers’ suit fraudulent and void, there was a total failure of consideration. 1 Parsons, Cont. (9th ed.) 462, 463, and cases; Rowe v. Blanchard, 18 Wis. 441. Another is that in the sale of such nonnegotiable choses in action there is an implied warranty that the seller has title and that the chose is not spurious, false, or counterfeit. Giffert v. West, 33 Wis. 617; Scott v. Hix, 2 Sneed, 192, 62 Am. Dec. 458, 468, and cases in note; Roehl v. Volckmann, 103 Wis. 484, 79 N. W. 755. The decree in the taxpayers’ suit having been offered in evidence, it was competent evidence not only against the parties actually named in said suit, but also against all the taxpayers and citizens in said county. State ex rel. Wilson v. Rainey, 74 Mo. 229; Clark v. Wolf, 29 Iowa, 197; Sauls v. Freeman, 24 Fla. 209, 4 South. 525;
The appellant seeks to avoid the effect of the foregoing by two propositions: First, he contends that in an action brought by a plaintiff against several defendants the judgment or decree, therein is not conclusive upon two or more of said defendants in a subsequent controversy between themselves over the same subject matter; second, that where a judgment or decree is not conclusive it is not evidence at all, — citing to the first proposition 24 Am. & Eng. Ency. of Law (2d ed.) 731, 733, and cases there referred to; and citing to the second proposition Pioneer S. & L. Co. v. Bartsch, 51 Minn. 474, 53 N. W. 764, which declares that the rule is familiar that, “as against any one except the parties and their privies, a judgment is evidence only of the fact of its recovery.” We are reminded that the lumber company, defendant, did not tender the defense of the taxpayers’ action to the plaintiff, and it is asserted that there was no privity between the defendants in that action, the North Wisconsin Lumber Company and William Giblin. Upon these last two propositions we are vinced that no tender of the defense of the taxpayers’ suit to Giblin was necessary; he was himself a defendant therein and controlled his own defense, and had every opportunity to prove the county orders in question valid if he was able so to do, and that in such ease the requirement of tendering the defense of an action to one liable over to a defendant has no application. Giblin was also in privity with the North Wisconsin Lumber Company. He was its vendor. The very action that he has now before the court assumes and is based upon privity by contract But the rule that an adjudication in favor of a plaintiff against two or more defendants is not binding upon such defendants is rather an exception to the rule that all parties to a decree are concluded thereby, than a rule itself.
“But if there had been no cross-bill, the fact that both-Hopple and the trustees were placed as defendants in the suit of Hippie does not impair the conclusive character of the decree in that case as between those parties. The present casé-is precisely analogous to that of Corcoran v. Chesapeake & Ohio C. Co. 94 U. S. 741.”
“As between the railroad company and the town, the judgment of the supreme court reversing and annulling the order of the county judge invalidated the bonds. The judgment of reversal was equivalent between these parties to a-refusal by the county judge to make the original order. The-next inquiry is whether, on the evidence, Stewart occupied in this suit a better position than the town. That‘depends on whether the testimony was 'such as to make it the duty of the court to submit to the jury, under proper instructions, the determination of the question whether he was in a commercial’ sense the bona fide holder of the coupons sued for. ... Here-the actual illegality of the paper was established. It was incumbent, therefore, on the plaintiff to show that he occupied' the position of a bona fide holder before he could recover.”
After holding that there was sufficient evidence tending to-show that Stewart was not a bona fide holder, it was ruled that it was not error to direct a verdict in favor of the town. In this case the invalidity of the bonds as against Stewart was proven by the judgment of the supreme court to which Stewart was not a party, it having been ascertained that he was not in a commercial sense the bona fide holder of the-coupons sued on. There is some conflict and uncertainty with reference to the .admissibility of judgments in evidence against persons not parties to the judgment or privy to such parties. And the rule is by no means settled, and by no means without exception, that a judgment is not evidence in any case in which it is not conclusive evidence. It is said that
“a record may be used to establish the fact of such judgment and the legal effect thereof, and cannot be collaterally attacked, even by strangers. The rule is stated by Sir James-*270 ^Stephen as follows: A11 judgments whatever are conclusive proof as against all persons of the existence of that state of things which they actually effect when the existence of the state of things so effected is a fact in issue or is or is deemed to be relevant to the issue.’ So, verdicts' and judgments on questions of a public nature, where evidence of a general reputation would be received, have been admitted,. although the parties were not the same nor in privity, but not as conclusive evidence; and, as will hereafter be shown, judgments in actions in rem, in so far at least as they fix the status of the particular subject matter, may not only be admissible, but may also be conclusive in a proper case, even against strangers to the record.” 2 Elliott, Ev. § 1525, and cases; State ex rel. Atkinson v. McDonald, 108 Wis. 8, 84 N. W. 171.
Certain decrees in equity are classified as quasi in rem, and such decrees may be offered in evidence as against any person with respect to the particular property described therein for the purpose of establishing prima facie the status of that property. Arndt v. Griggs, 134 U. S. 316, 10 Sup. Ct. 557; Fry v. Taylor, 1 Head, 594; Liginger v. Field, 78 Wis. 367, 47 N. W. 613. A decree declaring invalid, fraudulent, or spurious municipal obligations which are nonnegotiable but readily assignable is of this latter class. Consequently the decree in the taxpayers’ suit mentioned canceling and perpetually enjoining payment of the county orders in question was binding upon the plaintiff and defendant in this action as determining that said county orders were invalid and worthless, first, because they were both parties to the taxpayers’ suit and the matter of the invalidity and illegality of these county orders was a direct issue in that action between the plaintiff and each defendant therein; second, because they were residents and inhabitants of the county for and in whose behalf the taxpayers’ action was carried on; third, because the plaintiff and defendant were in privity in said action with respect to the invalidity of said county orders ; and fourth, because the decree in such case is quasi in ■rem and establishes prima facie as against all persons the
The appellant next contends that there was an agreement •on the part of the defendant, through McCormick, to take these county orders for better or worse; that is to say, to take them and pay $2,500 therefor, and take its chances on the taxpayers’ action which was expected or threatened. We do not think there is any sufficient evidence to establish prima facie such an agreement on the part of the defendant, hut if we assume that there was sufficient evidence for that purpose, then we would have a case where the chairman of the county board of supervisors and general manager of the defendant corporation, having notice that the taxpayers’ suit to cancel up the county orders in question or to enjoin the collection by the plaintiff, Giblin, of his claim filed with the county board for allowance was threatened, agreed to purchase said claim and pay $2,500 therefor and take his chances on the litigation, which means that he would place himself in an attitude of hostility to the suit brought in behalf of the county by its taxpayers and defeat such suit if possible. Such an agreement, if made by the corporation through the county ^chairman acting for it, would be contra bonos mores and void. In whatever way we look at this case the judgment of the circuit court must be affirmed.
By the Gourt. — The judgment of the circuit court is affirmed.