106 Wis. 282 | Wis. | 1900
The objections raised to the complaint were absence of jurisdiction of the subject matter and the existence of an adequate remedy at law. They are supported in this court, and presumably were in the court below, by the contention that plaintiff might have obtained all the remedy sought in this action by a motion in the suit of Huber v. Johnson, where the court would have had power to grant such relief either by virtue of sec. 2911, Stats. 1898, or by virtue of the control inherent in courts over the enforcement of their own judgments. That contention might well be conceded without affecting the conclusion in this case. The jurisdiction of courts of equity by proceedings in personam
The objection that adequate relief can be otherwise obtained, now urged to the exercise of such power, is waived if not raised by demurrer or answer. Some little uncertaint3r cast upon the universality of this rule has certainly now been removed by the recent case of Hoff v. Olson, 101 Wis. 118, reference to which renders citation of other authorities unnecessary. The service of the answer in this case, making no objection by reason of the existence of any other remedy, has completely waived it and submitted the rights of both plaintiff and defendant to consideration and adjudication according to equitable methods, and the objection to admission of all evidence by reason of the existence of such other remedy should have been overruled, instead of sustained, and the judgment entered as upon the sustaining of a demurrer must be reversed.
Such judgment being reversed, we are confronted by a record in which it appears that, before deciding upon its admissibility, all evidence offered by either party was received, and the case ready for decision upon its merits. The court should have proceeded to make findings of fact upon
By the Court.— Judgment reversed, and cause remanded with directions to enter judgment in accordance with this opinion.