Wilson v. Jarvis

19 Wis. 597 | Wis. | 1865

By the Court,

Downer, J.

The plaintiff, Wilson, was not entitled in this action to the relief he asked and obtained by the judgment of the circuit court, unless this suit was commenced before the suit of Jarvis v. Wilson and others. If it was so commenced, it should clearly appear both by the complaint (or a supplemental complaint), and by the decision of the circuit court. It does not so appear ; the circuit court did not so find; and the recital in the injunctional order that this action was commenced one day before the other cannot avail the plaintiff against the averments of his complaint. If the action of Jarvis v. Wilson was first commenced, then it would draw to it the right to have the validity of the tax deed to Jarvis for the taxes of 1856, and everything pertaining thereto, adjudicated in that suit. If that action was not commenced first, even then the plaintiff had no right to an injunction in this suit,enjoining proceedings in that action. Both actions are what would have been suits in equity before the code. Under the former chancery practice, a court of equity never interfered by inj unction to stay proceedings in another equity suit in the same court. Dyckman v. Kernochan, 2 Paige, 36. If the suit of Jarvis v. Wilson was really commenced, as the plaintiff contends, after this action, he should have answered in that action setting up the pendency of this suit at the time that was commenced, and any other defense he had or might plead thereto, and then in that action have applied to the court for a stay of proceedings until this was heard or tried.

The averment or legal conclusion of the pleader, that, “ by the peculiar provisions of chap. 22, Laws of 1859, and the rulings and decisions of the courts thereon, the plaintiff cannot have the benefit of the facts aforesaid as a defense in said action,” is without foundation. It was held by this court in Wakeley v. Nicholas, 17 Wis., 594, that the effect of that act was “to cut off all mere technical defenses, not going to the ground work and justice of the proceedings, and to compel the payment of taxes where equity required that they should not be avoided.”

The judgment of the circuit court is reversed, with costs, and the cause remanded for further proceedings.