201 Wis. 309 | Wis. | 1930
It is apparent from the stipulation referred to that the parties attempted thereby to remove from the consideration of the circuit court for Eau Claire county all questions except that relating to the liability of the defendants on account of the Duesenberg car transaction. Having agreed to litigate the Duesenberg car transaction in the circuit court for Eau Claire county, it appearing that the district court had denied the right of the plaintiff to recover in the accounting action in the federal court on the ground that it constituted a legal rather than an equitable cause of action, the defendant should be bound thereby in the absence of some controlling reason. The reason assigned is that by making the assignment of error in respect to the Duesenberg car transaction on its appeal from the district
The practice of dismissing an action upon motion because of a former adjudication of the issues is anomalous. If the issues in this case have been adjudicated in a former action, the proper procedure would be to set it up as a defense in the answer. Then the question arises upon the trial whether or not the plaintiff is concluded by the former adjudication. We find no warrant for the practice of moving to dismiss an action on account of a former adjudication. We do not find that the matter has been determined in this state, but in the state of Minnesota, under procedure much like ours, it is held that, a former judgment on the same cause of action being a complete bar to a subsequent action, it must be pleaded by way of defense. Bowe v. Minnesota Milk Co. 44 Minn. 460, 47 N. W. 151. The judgment, however, may be received in evidence, where it is material upon the issues,
By the Court. — Order reversed, and cause remanded for further proceedings.