107 Wis. 245 | Wis. | 1900
It is nowhere alleged that R. W. Roberts, one of -the judgment debtors, is not entirely solvent, and the holder of abundant property oiit of which the judgment purchased by the plaintiff can be satisfied, while there is evidence given by the plaintiff to the effect that he is a man of considerable .property. The answer objects to the maintenance of this action for the reason that the plaintiff has an adequate and complete remedy at law. It is difficult to see Row that objection can be escaped. The judgment rendered against R. W. Roberts and the defendants jointly was upon a cause of action in tort for money obtained by fraud. Each is liable for the whole, and with no right of contribution, the one against the others. Until plaintiff shall have exhausted his clear legal and statutory remedy by execution, or shown futility pf any effort so to do, he is not entitled to invoke the extraordinary aid of a court of equity to pursue the money received by these defendants, and impose a constructive trust upon their homestead purchased therewith. Wolf River L. Co. v. Pelican B. Co. 83 Wis. 426.
The fact, if it be a fact, that the plaintiff here, or the judgment plaintiffs from whom he purchased, have effectively released R. W. Roberts, cannot change the situation. One
A further consideration is equally fatal to the maintenance of this action. The samé cause of action is here presented as was presented in a court of equity in a former suit, ■where the court decided just what the remedy should be. It is an attempt .to relitigate and obtain another and differ•ent judgment upon the same cause of action. By the decision in 96 "Wis. the subject is wholly res adjudieata. The •court there, with the facts all before it, decided and adjudged what remedy the plaintiffs were entitled to, — whether it should be that of a mere personal judgment, or whether it should be a rescission of the sale of the real estate, or, as might have been accorded under the issues in that case, whether there should be a charging of the funds in the bands of the defendants with a trust in favor of the plaintiffs in that action. From these several remedies the court has decided which is the proper one, thereby impliedly adjudicating against the others. The plaintiffs’ only redress was a motion for a rehearing, which they did not see fit to make. Thereby they availed themselves of the one remedy, ■and cannot now maintain a new action for another and different one, to which the court has already adjudged them not entitled.
These views fully dispose adversely of the plaintiff’s cause •of action, and render unnecessary the consideration of other detail errors assigned against the judgment.
By the Court.— Judgment reversed, and cause remanded with directions to dismiss the complaint.
