27 Wis. 268 | Wis. | 1870
This is an appeal from an order of the county court of Winnebago county, in an action of forcible entry and detainer, refusing an application of the defendant for a writ of restitution to restore him to the possession of the premises in controversy, from which he had been removed by process issued from the justice’s court in which the action was commenced, and before it was taken by appeal to the county court, where the judgment of the justice was reversed. The facts of the case are these: On the 20th of September, 1866, the premises, a house and lot in the village of Menasha, were in the possession of one Oliver Pretty, who occupied the same as a tenant ; and on that day the defendant in this action, Smith, claiming to be the owner of the property, commenced an action of ejectment in the circuit court of Winnebago county against Pretty to recover the possession thereof. The summons was served upon Pretty on the same day. Three days before, on the 17th of September, 1866, the plaintiff in this action, Towle, acquired title to the premises by purchase from Pretty’s lessors; and Pretty’s term soon expiring, he left the premises, and Towle, on the 1st of October following, entered into possession claiming under title adverse and paramount to that of Smith. The possession thus obtained by Towle continued undisturbed until the 24th of June, 1867, when he was turned out by the deputy sheriff upon an execution issued on a judgment in the ejectment suit against Pretty, and the defendant in this action, Smith, was put in. Smith had obtained judgment by default against Pretty on the 18th of June, 1867. Towle was not a party to the
After his dispossession and removal, and the failure of his motion in the ejectment suit, Towle commenced this action before a justice of the peace. He recovered judgment against Smith before the justice, and, upon process of restitution issued by the justice, Smith was removed and he himself put back in possession. Smith then appealed to the count}*- court, where the judgment of the justice was reversed, the court holding that the action of forcible entry and detainer would not lie where the possession had been obtained, as was shown, by process in the hands of a public officer. After the judgment of reversal came the application from which this appeal originated,
Our opinion is, that the application was properly denied; and our reason for this opinion, because Smith wrongfully dispossessed Towle and obtained entry and possession himself in the first place. He did this by an abuse of legal process, and no matter if he has been turned out and Towle become repossessed under a judgment which was erroneous and has since been reversed. It is in the discretion of the court to grant or not to grant restitution in such case, according to circumstances. Two wrongs have made a right in this instance; and what is right as it is the law will let alone, and not interfere so as to put a party to a fresh action to obtain it.
By the Court. — Order affirmed.
