Scheiderer v. A. George Schulz Co.
169 Wis. 6
Wis.
1919
Check Treatment
Siebecker, J.

The record shows that the circuit co.urt entered an order reversing the judgment of the civil court, and ordered that the cause be remanded to the civil court with directions that judgment be there entered dismissing the plaintiff’s complaint, with costs. This order of the circuit court, made pursuant to the civil court act (ch. 549, Laws 1909, as amended; secs. 1275-1337, ’ Milwaukee County Laws, 1912), is in effect a judgment of the circuit court and we must so regard it. It is clear that secs. 1334-1337 inclusive (sub. 2-5, sec. 28, ch. 549, Laws 1909, as amended by ch. 320, Laws 1913), prescribing the proceedings on appeal in actions from the civil court to the circuit, provide that on appeal from a judgment the circuit court is required to affirm, reverse, or modify and affirm as modified, the judgment appealed from upon the original papers *10and the return of the clerk of the civil court. Sec. 1337 (sub. 5, sec. 28, ch. 549, Laws 1909) provides that if a civil court judgment is affirmed, or affirmed as modified, it shall be entered and docketed in the circuit court as if originally-rendered therein and thereby become a judgment of the circuit court. No specific direction is provided as to what proceeding shall be had if the judgment appealed from is reversed when no new trial is granted. The following clause in sec. 1337 (sub. 5, sec. 28, ch. 549, Laws 1909) is controlling in such cases:

“The proceedings upon any appeal from any judgment or order of the civil court, except as herein otherwise provided, shall be governed by the provisions of chapter 160 of the Statutes relating to appeals from justices’ courts and judgments of justices of the peace so far as such provisions may be applicable thereto.”

Under these provisions the circuit court was authorized to reverse the judgment appealed from and enter judgment dismissing the complaint and award defendant recovery of the costs to which it is entitled under the statute in the civil and circuit courts, and in order to perfect the judgment the clerk of the circuit court should have been directed to tax such Costs and insert them in the circuit court judgment.

The circuit court held that the jury’s finding that Clarence Scheiderer was not guilty of any want of ordinary care proximately contributing to cause the accident is without support in the evidence. The circuit court set forth and collected the evidence on the subject in an elaborate opinion which would unduly extend the report of the case if given in detail here. Reference thereto clearly shows that Clarence Scheiderer was familiar with the machine and all its surroundings ; that he had had explained to him the method of operating the treadle, the use of the button under the treadle to prevent the machine from operating, and the danger to his hands if put under the knives if the machine should be accidentally started by coming in contact with the treadle o.r *11the attached stick; that he was supplied with an iron hook to clean the slots when they became clogged; and that he observed other operators use their fingers to clean out the slots. Among the facts he testifies to are these:

“. . . Before my knee slipped off the rod I knew that the button was not under the treadle. ... I didn’t think of it until I got down on the floor, and when I got down on the floor I first thought of the treadle or the block. ... I knew in the position my hand was it would cut my fingers.”

It is manifest from this testimony that he was fully aware of the dangers incident to operating the machine under the methods and processes that the work was being done; that he failed to exercise ordinary care to use the appliances and the methods to protect'himself from the hazards incident to and known to him in operating the machine, and that such want of care on his part contributed to produce the accident. It necessarily follows that plaintiff is not entitled to recover on her complaint.

It is contended that the circuit court erred in holding that the judgment rendered in the action of Clarence Scheiderer by his guardian ad litem, Caroline Scheiderer, the plaintiff herein, and against this defendant, is not res adjudicata in this action. It is clear that Caroline Scheiderer, this plaintiff, was only technically a party to the former action. A guardian ad litem in an action is appointed by the court and answerable to the court. The infant is the party. “The fact that he appears by guardian ad litem does not make two parties plaintiff [or defendant]. Failure to appoint a guardian ad litem for a minor does not throw him out of court.” Rohleder v. Wright, 162 Wis. 580, 156 N. W. 955. Nor was the plaintiff in any sense the real party in interest to that action; she had no interest in or right to the son’s cause of action or the judgment he might obtain. Her relationship to the son’s cause of action and any judgment therein was that of a stranger. She had no interest or property right therein, nor did she in any way *12succeed to any of the son’s rights. Under such conditions no grounds for the application of the principle of res ad judicata exist as claimed by defendant. Upon the point made by the defendant that the verdict in the son’s action operates as an estoppel because the jury there found him guilty of contributory negligence upon the principle of stare decisis, it is sufficient to say that the evidence in the former suit is not before the court and hence it cannot be known on what the verdict in that case rested nor whether the evidence on the issue of contributory negligence is identical in the two actions. We have above indicated that the order of the circuit court from which this appeal is taken is in effect a judgment.

By the Court. — The judgment is affirmed.

Kerwin and Rosenberry, JJ., took no part.