| Wis. | Nov 3, 1885
The order appealed from cannot be sustained on the ground that it was in the nature of a setoff of one judgment against another. The facts do not present a case for the exercise of that power on the part of the court. The equity suit, when settled, was pending in Jefferson circuit, and included other par-ties as well as the parties to this action. Undeniably that action had been settled, and the judgments sought to be collected in that proceeding had been paid. It is true, one of those judgments was the one in favor of the appellant which he had obtained in the justice’s court. The respondent had taken an appeal from this judgment, but gave no bond to stay proceedings to collect the same. The appellant, after filing a transcript in the circuit court, and having issued an execution which was returned unsatisfied, together with M. J. Roberts commenced the equitable suit in the nature of a creditors’ bill to collect their respective judgments against Ohapmcm. This action was against the principal debtor and other persons to whom it was alleged he had transferred his property, for the purpose of placing it beyond the reach of his creditors. As we have said, it is an admitted fact that the judgments mentioned in the equity suit were paid and discharged;
But the order made on the trial of the appeal action, doubtless, was supposed to he authorized by sec. 3772, E. S. That section provides that if a justice’s judgment, or any part thereof, be collected, and the judgment be afterwards reversed, the appellate court shall order the amount collected to be restored, with interest from the time of the collection. Such order may be obtained, upon proof of the facts, upon notice and motion, and may be enforced as a judgment. Mow, it is claimed that the case made by the affidavits is within the spirit, if not the letter, of this section; but the difficulty with that construction, as applied to this case, is that the judgment in the action of Sutton v. Chapman was not reversed in the circuit court on appeal. The amount recovered by the plaintiff in the justice’s court was reduced in the appellate court nearly $100; but still the plaintiff had judgment in that court for $60, the amount found due him by the jury. So it is obvious that his judgment was not reversed, and the case did not come within the language of the section.
But it is claimed that the order of the circuit court fairly adjusted the rights of the parties, and should be sustained to prevent a circuity of action. In its order the court adjudged that the amount which the defendant was entitled to recover back on account of having paid the judgment in the equity suit was the sum of $186.18, less the sum of $60 and the costs taxed in the action on appeal. Whether this was a fair and equitable adjustment of the litigation between these parties depends entirely upon facts which cannot well be determined on affidavits. These facts are whether the payment of the judgment in the equity suit was not voluntary, and understood to be, at the time, a settlement of the suit then pending on appeal in the circuit court of Columbia county. On the affidavits now before us,
By the Court. — The order of the circuit courtis reversed, and the cause is remanded for further proceedings in conformity with this opinion. And it is further ordered that upon the commencement of an action by the defendant to recover the money he claims has been wrongfully obtained from him, and upon his giving a sufficient bond for the payment of the judgment of $60 and costs and interest, the circuit court order a stay of all proceedings for the collection of that judgment during the pendency of such action.