86 Wis. 113 | Wis. | 1893
But the precise question has been decided in Docter v. Furch, 76 Wis. 153, where a judgment that the plaintiff’s complaint did not state facts sufficient to constitute a cause of action, by reason of the omission of certain essential allegations, was held not , to be a bar to another action by the same plaintiff in the complaint in which the defects in the former one are supplied, and that case is decisive against the bar invoked by the defendant in this. In 1 Freeman, Judgments (sec. 267), it is said that “if the court decides that the plaintiff has not stated facts sufficient to constitute a cause of action, or that his complaint is otherwise liable to any objection alleged against it, such decision does not extend to any issue not before the court on the hearing of the demurrer. It leaves the plaintiff to present his complaint in another action, so corrected as to be no longer vulnerable to the attack made in the former suit.” And many cases are cited in a note in support of this conclusion.
In Gilman v. Rives, 10 Pet. 298, 301, it was held (Story, J., delivering the opinion) “ that a judgment that a declaration is bad in substance can never be pleaded as a bar to a good declaration for the same cause of action. The judgment is in no just sense a judgment on the merits.” The cases of Walden v. Bodley, 14 Pet. 156; Hughes v. U. S. 4 Wall. 237; Gould v. E. & C. R. Co. 91 U. S. 526; and Wiggins Ferry Co. v. O. & M. R. Co. 142 U. S. 410,— are all to the same effect; and the same view is maintained in Birch v. Funk, 2 Met. (Ky.), 544; Stowell v. Chamberlain, 60 N. Y. 272; Brackett v. Hoitt, 20 N. H. 257; Schindel v. Suman, 13 Md.
These considerations dispose, it is believed, of the vari
Besides, if the statements in the counterclaims were put in the form of an original complaint by the defendant, it is perfectly clear that the' matters in question could not be litigated without the presence of the Hudson Lumber Company as a necessary party. This is really conceded by the defendant by his motion to bring in the corporation as a party defendant. For this reason the defendant could not set up the facts alleged as counterclaims, because they could not be litigated without the presence of a new and necessary party. McConihe v. Hollister, 19 Wis. 269; Pennoyer v. Allen, 50 Wis. 308, 810. As the plaintiff has brought a legal action, and seeks nothing but a money judgment, be cannot be compelled to bring in other parties than the one he has chosen to make defendant. Coursen v. Hamlim, 2 Duer, 513. No other person is a necessary party to the litigation of his demand. Sec. 2610, E. S., providing for bringing in a party whose presence is necessary for a complete determination of the action, or who has an interest in its determination to be protected, does not apply to this case. Chapman v. Forbes, 123 N. Y. 532, 540, 541. The case of Stein v. Benedict, 83 Wis. 603, is not inconsistent with this view. It was there held, merely, that where a party, or one not a party, intervenes and files a petition for equitable relief against a judgment, he may have new parties brought in, if shown to be necessary by his petition, which is in substance a substitute for an original complaint for relief against the judgment.
It follows from these views that the circuit court properly denied defendant’s motion to have the Hudson Lumber
By the Court.— The judgment of the circuit court is affirmed.