32 Wis. 429 | Wis. | 1873
The plaintiff has appealed from an order of the court below, made on motion of the defendant Wheeler, staying all proceedings in this action until the action mentioned in the motion papers, and which is pending in the district court
The plaintiff in this action is not a party to that one, but the motion papers tend very clearly to show that at the time of purchase he had actual knowledge of the pendency of it, and
In view of the foregoing facts, the question arises whether tbe order is appealable. Council for tbe plaintiff, expressly conceding that tbe case of Johnston v. Reiley, 24 Wis., 494, was correctly decided, as we bave no doubt it was, still claim to distinguish tbis case from it They say that tbe former action there pending, and for and until tbe determination of which tbe proceedings in tbe subsequent action were stayed, was an action between tbe same parties. They say also that here tbe parties to tbe two actions are not the same.
The fact is so, but bow does it vary or affect the application of tbe principle or rule of practice? We think clearly not at all. The plaintiff, as purchaser of tbe judgment pendente lite, stands to all intents and purposes in tbe shoes of bis assignors, who are parties to tbe first action. Any determination of that action or decree in it, vacating or annulling tbe judgment sued upon or adjudging satisfaction of it, will as effectually bind and preclude tbe plaintiff as if be were a party to the action. It will bind him tbe same as bis assignors, who are such parties. It would be something very strange and anomalous if be could step in and buy, and take tbe judgment out of tbe litigation, and acquire the right to sue upon and prosecute it the same as if no such action was pending or bad been commenced. He cannot do so, but is bound and must abide by tbe results of tbe litigation in all respects as if be were a party to tbe action. He may be let in and become such party in fact, perhaps, on bis own application, but tbe plaintiffs in tbe action are not required to amend their bill or to bring him in.
Tbis case, though differing, therefore, slightly in its facts from Johnston v. Reiley, is not distinguishable in principle, or tbe practice which should be adopted.
It is suggested that the order here should not have been granted without requiring- security to be given by the defendant. In a proper case no doubt security maybe required; but the necessity for it is not shown in this case, and it was no abuse of discretion not to require it.
By the Court,— Appeal dismissed.