34 Wis. 244 | Wis. | 1874
But little can be said in this case after the two full and able opinions already delivered by Mr. Justice Lyon; one on the appeal from the order refusing to strike the cause from the calendar, and the other on the motion to dismiss this appeal. The questions involved in this appeal were necessarily discussed in those decisions; and, notwithstanding the views there expressed have been sharply criticised by the counsel for the appellant, we are satisfied with their general correctness. It was in substance held and adjudged in those decisions, that the plaintiff could not discontinue the whole action, even with the leave of court, where the defendant had interposed a counterclaim consisting of a substantive cause of action against him. Even if these decisions were erroneous, it is very evident that they must stand as the law of this case, upon the familiar principle of res adjudícala. But we think they rest upon sound principles, and that no evil consequences are likely to flow from them. It is said that it is inequitable not to permit the plaintiff to discontinue the entire action, but force him to remain in a foreign tribunal and litigate, at great delay, difficulty and expense, not only his own claim, but also the counterclaims of the defendant. But the plaintiff voluntarily sought this tribunal to enforce the collection of his claim against the defendant, and he ought to be willing to submit in its whole extent to the jurisdiction which he has invoked. It' may be a matter attended with difficulty and expense for him to defend against the counterclaims of the defendant at a point so remote from his residence; but this is an inconvenience not unfrequently connected with the prosecution or defense of a suit where the necessary witnesses reside at a distance from the place of trial. And if the defendant has the right to have the counterclaims which he has interposed, adjudicated and settled
These general remarks are made in answer to some things contained in the argument of counsel for the plaintiff, without any purpose to go over the ground covered in the opinions
By the Court. — The order of the county court is affirmed.