133 Wis. 112 | Wis. | 1907
The judgment rendered in the circuit court on the $200 note, prior to the order of consolidation of the actions, is in no way impeached as to its validity, .It must be presumed that the order vacating it upon condition that Alpetei pay the sums specified in the order was not complied with, since the judgment was entered after the expiration of the period given Altpeter to prevent its entry upon the verdict by the payment of the sums so ordered. Nor does the record disclose that any steps were taken by him to comply with the court’s directions in this respect.
Defendants’ nonappearance upon the trial of this case resulted in not litigating the issues raised by the counterclaim alleged by defendants against the plaintiff’s claim on this note. The same counterclaim was interposed in each of the actions on the other two notes and was carried into the consolidated action. Upon the trial of the instant action the trial court was of the opinion that plaintiff’s recovery of a judgment in th'e action on the $200 note in the circuit court operated as an adjudication of the merits of the counterclaim, though defendants omitted to appear to actually litigate the issues raised by it, and that this amounted to an adjudication of the claim alleged in the counterclaim and precluded consideration of it as a counterclaim to’ the plaintiff’s claim in the actions on the other two notes. Under the circumstances shown, this ruling was not justified. Defend
There is nothing in plaintiff’s conduct showing an intention to waive its right to this judgment of the circuit court. The circumstances disclose that counsel who were conducting the case for the plaintiff were misled through' an inadvertent omission to note the state of the proceedings in each of the actions on these three notes, and consequently did not know that the defendants had defaulted and had not complied with the conditions of the order vacating this judgment on the $200 note. This also explains why this action was included in the stipulation for a consolidation of 'the actions. Defendants, however, were in no way misled to their disadvantage, and the circumstances can furnish no ground for an estoppel against plaintiff’s asserting its right to the judgment.
The defendant Alt-peter is a voluntary bankrupt, and it appears that he scheduled plaintiff’s notes as subsisting debts, and that he was discharged from all his debts on July. 23, 1899. There is nothing to show that this counterclaim was treated as an asset or was claimed by the trustee in bankruptcy. Under these circumstances it is a subsisting liability against plaintiff, and is properly enforceable as such by Altpeter s surety in plaintiff’s suit on the two notes not theretofore prosecuted to judgment.
Plaintiff contends that the evidence adduced is insufficient
Upon these considerations the judgment must be reversed and the cause remanded for a new trial, so that the issues raised by the counterclaim may be litigated in the action.
By the Gourt. — It is so ordered.