| Wis. | Oct 11, 1862
By the Court,
Considering the attitude of this case when the stipulation of October 19th, 1861, was entered into, we think no other or different effect can be given that stipulation than to say it remitted the parties to the same position and rights enjoyed by them when the litigation commenced. It appears to us that this is the direct legal effect and consequence of a discontinuance of the suit by the plaintiffs. It is true they had been put into possession of the premises in dispute, but how ? By commencing their action of ejectment, having a trial, obtaining a judgment, and issuing an execution for' the delivery of the possession of the premises to them. The respondents then made an application for a new trial under the statute, which was granted by the court. And while the cause was in this position — the right to the property and its possession being undetermined— the plaintiffs dismissed their suit. They now claim the right to retain and hold the property, the possession of which they obtained through a suit which they have-voluntarily abandoned. Suppose they had instituted a suit for the possession of personal property, and after having got the property into their possession by means of the process of the court, should then dismiss their suit; could they still retain the property thus acquired ? It is quite obvious to my mind that they could not. And it is equally clear that they cannot retain and hold real estate the possession of which they obtained under precisely similar circumstances.
We think the stipulation would have authorized a judgment in favor of the respondents, with an order giving them possession. And we are inclined to the opinion that this would have been the better course to have purs'ued. But the. same result is' substantially reached by the order which
wag ga^ ^be execution of this stipulation was in every way a fair, open transaction, as much so as the dismissal of any cause in open court. It is not necessary to controvert this statement. We do not set aside the stipulation on account of any fraud or deception practiced in obtaining it. We let the stipulation stand, and give to it the effect which we think it must have upon the suit and the rights of the parties. It simply places them in the same position they occupied before the litigation commenced. Such, we think, must be the effect and legal consequence of discontinuing the suit. If the situation of the parties, or their relations to the property, had been changed by the litigation, they were to be reinstated in the rights they occupied and enjoyed pri- or to the commencement of the action.
It is said this order is anomalous — that a controversy about property had been decided in favor of the appellants, when the court interferes and takes away by this order, from the successful party, the fruits of the litigation. But the error in this position is in assuming that the controversy has been decided in favor of the appellants, when in truth and fact it was still undetermined and unsettled, and they saw fit to discontinue the suit rather than prosecute it further. And ■ all the court attempted to do was, to give full effect to a stipulation voluntarily entered into between the parties.
It follows from these views that the order of the circuit court must be affirmed, with costs.