| Wis. | Jan 10, 1922
The following opinion was filed November 15, 1921:
In the unlawful detainer proceedings of May, 1920, plaintiff claimed defendant was a tenant from month to month, defendant that he was a tenant under a one-year term expiring August 25, 1920. The dispute between them on that point was not then settled, but the case was dismissed with a written stipulation providing, as quoted above, that defendant shall remain in possession of the leased premises according to his agreement until August 25, 1920.
Whether his prior possession was as a tenant from month to month or for a one-year term is just now immaterial, because under the law his tenancy, whatever it was, termi
Under the law and the facts, therefore, the proper judgment to have been entered on September 8th by the justice of the peace should have been one finding the defendant guilty of unlawfully withholding possession and directing restitution forthwith. The justice^ however, erroneously held otherwise and rendered a judgment for defendant. Necessarily such judgment determined that the relationship between the parties subsequent to August 25th was of such a nature that the defendant was considered to be in lawful possession of the premises at least until the date of such judgment.
A prompt appeal from such erroneous judgment would undoubtedly have resulted in a reversal thereof and the entry of a proper one. The plaintiff, however, took no appeal therefrom and paid the costs assessed against her by such judgment.
Then, on September 30th, this action is commenced and identically the same grounds for relief are set forth here in the complaint as were set forth in the action so disposed of on September 8th; the parties are the same; the alleged relationship between them prior to May, 1920, and from then on to August 25th, is the same; the dismissal of the action and stipulation therein of May, 1920, are also set forth; the only difference in the recitals of the two complaints is of the mere lapse of time. No fact is here recited or relied upon tending to show that there was any change in
In such situation the defendant interposed the plea of res judicata, basing it upon the prior judgment of September 8th, and such plea should have been sustained.
In the action decided on September 8th plaintiff was required to prove, in order to be entitled to judgment, that there was an unlawful holding of the premises by defendant after August 25th, his prior possession being unquestionably lawful. But under the undisputed facts in that case and in this, the relationship between the parties as to the possession was in substance and effect the same on the 28th of August, 2d, 8th, and 30th of September, and all intervening times; that is, if defendant as a matter of law was in lawful possession of the premises on September 2d and 8th, he was equally so on September 30th, and vice versa.
The court, having jurisdiction of the parties and subject matter, mistakenly decided on September 8th that defendant was in lawful possession for a period subsequent to August 25th. This judgment, though erroneous, being allowed to remain, settled and determined the question of the relationship between the parties from and after August 25th, and necessarily, until, by operation of law or by act of one or the other of the parties, some change in such relationship arose.
The conclusiveness of such a judgment is not impaired because based upon a mistaken view of the law that should control the situation. Baker v. Baker, 57 Wis. 382" court="Wis." date_filed="1883-04-04" href="https://app.midpage.ai/document/baker-v-baker-6604070?utm_source=webapp" opinion_id="6604070">57 Wis. 382, 391, 15 N. W. 425; Hart v. Moulton, 104 Wis. 349" court="Wis." date_filed="1899-10-20" href="https://app.midpage.ai/document/hart-v-moulton-8186415?utm_source=webapp" opinion_id="8186415">104 Wis. 349, 353, 80 N. W. 599; Marin v. Augedahl, 247 U. S. 142, 149, 38 Sup. Ct. 452; Fauntleroy v. Lum, 210 U.S. 230" court="SCOTUS" date_filed="1908-05-18" href="https://app.midpage.ai/document/fauntleroy-v-lum-96865?utm_source=webapp" opinion_id="96865">210 U. S. 230, 237, 28 Sup. Ct. 641.
All the requisite identities as to parties, cause, and questions to be determined that must exist in order to make the first judgment a bar in the second action are here present.
The fact that the day prior to the trial and entry of judgment on September 8th the defendant paid and the plaintiff received a sum equal to the agreed rental of $12 per month has no bearing in the present disposition of this case; first, because it covered a period which included the time from August 6th to August 25th while defendant was in conceded lawful possession as well as for the period from August 25th to September 6th, and was paid while plaintiff was still consistently, by the carrying on of the then pending action of unlawful detainer, maintaining a position contrary to any express or implied recognition of defendant’s then possession being lawful under some new form of tenancy, such as at will or for a term of one year (Palmer v. City L. Co. 98 Wis. 33, 73 N. W. 559); and second, the fact of such payment was in the record before the justice of the peace when he disposed of the case on September 8th, and the effect thereof would necessarily be for determination before him in making his then decision.
The manifest want of equity or righteousness in the position taken by the defendant in so remaining in possession after August 25th cannot, however, prevent the application of the principle here followed, which is the basis of the long established doctrine of the conclusive effect to be given to judgments in order that there may be an end, within reason, of litigation.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.
A motion for a rehearing was denied, with $25 costs, on January 10, 1922.