| Wis. | Oct 27, 1914
Lead Opinion
Tbe following opinion was filed June 17, 1914:
Tbe complaint in this action states facts sufficient for a cause of action to restrain appellant from enforcing bis judgment in tbe former action, so far as it was dependable on tbe contract between tbe parties being as there determined. It baying been so beld on tbe previous appeal in this case, 148 Wis. 592" court="Wis." date_filed="1912-03-12" href="https://app.midpage.ai/document/zohrlaut-v-mengelberg-8190501?utm_source=webapp" opinion_id="8190501">148 Wis. 592, 134 N. W. 1135, tbe decision on sueb appeal, tbougb by a divided court, is tbe law by wbicb tbe rights of such parties must now be determined. Lathrop v. Knapp, 37 Wis. 307" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/lathrop-v-knapp-6601751?utm_source=webapp" opinion_id="6601751">37 Wis. 307, 312; Case v. Hoffman, 100 Wis. 314" court="Wis." date_filed="1898-06-23" href="https://app.midpage.ai/document/case-v-hoffman-8185987?utm_source=webapp" opinion_id="8185987">100 Wis. 314, 75 N. W. 945.
Starting as indicated, the way to tbe right result on this appeal is plain and short.
Tbe facts, beld, as aforesaid, to constitute a good cause of action, are covered by tbe findings in favor of respondent. All such findings as to what tbe real contract was between tbe parties and as to tbe equitable right of the respondent to litigate that matter notwithstanding the former judgment, upon tbe ground of excusable failure to properly bring tbe matter to tbe attention of tbe court upon tbe former occasion, are covered by tbe findings now in favor of respondent, and such findings are too well supported by evidence to permit disturbance of them. Therefore tbe judgment rendered on such findings, so far as they are not fatally affected by errors of law, must be affirmed and otherwise modified.
In an action of this sort, tbe former judgment is not disturbed nor is any matter on which it was based retried; but tbe court, acting upon tbe party who obtained tbe unconscionable judgment by reason of matters excusably not brought to tbe attention of tbe court, prevents him from being enriched thereby. Crowns v. Forest L. Co. 102 Wis. 97" court="Wis." date_filed="1899-02-21" href="https://app.midpage.ai/document/crowns-v-forest-land-co-8186168?utm_source=webapp" opinion_id="8186168">102 Wis. 97, 78 N. W.
The res adjudicata effect of a judgment is not confined to-matters appearing on the face thereof. It extends to all questions within the issues, which were actually passed upon in reaching the final conclusion, whether mentioned in the judgment or found only in the findings 'ox otherwise in the case and properly preserved, and may extend further. Wentworth v. Racine Co. 99 Wis. 26" court="Wis." date_filed="1898-03-22" href="https://app.midpage.ai/document/wentworth-v-racine-county-8185836?utm_source=webapp" opinion_id="8185836">99 Wis. 26, 74 N. W. 551; Rowell v. Smith, 123 Wis. 510" court="Wis." date_filed="1905-01-10" href="https://app.midpage.ai/document/rowell-v-smith-8188090?utm_source=webapp" opinion_id="8188090">123 Wis. 510, 102 N. W. 1; Strong v. Hooe, 41 Wis. 659" court="Wis." date_filed="1877-01-15" href="https://app.midpage.ai/document/strong-v-hooe-6602260?utm_source=webapp" opinion_id="6602260">41 Wis. 659; Rupiper v. Calloway, 105 Wis. 4" court="Wis." date_filed="1899-11-24" href="https://app.midpage.ai/document/rupiper-v-calloway-8186465?utm_source=webapp" opinion_id="8186465">105 Wis. 4, 80 N. W. 916; Eastman v. Porter, 14 Wis. 39" court="Wis." date_filed="1861-05-15" href="https://app.midpage.ai/document/eastman-v-porter-6598456?utm_source=webapp" opinion_id="6598456">14 Wis. 39.
It follows that, as to matters decided in the former action which do not concern what the real contract was between the parties, but are important only in determining the justice of the case in the light of such contract, the decision before should have been received and treated upon the trial of this case as conclusive between the parties instead of being retried and contrary findings made.
The foregoing condemns the decision now complained of to the effect that at the time for determining the financial status between the parties before the commencement of the former action the value of the corporate assets represented by respondent’s interest in the corporation was less than $25,000, whereas it satisfactorily appears, as counsel for appellant claim, the court found in said action that such value was $25,672.15.
According to the contract, whether appellant, in taking back from respondent the interest in the corporation which he purchased, was required to render anything therefor aside from the $25,000 note, was determinable by whether the value of corporate assets represented by such interest, meas
Therefore, had the court in the first action been put in possession of the facts so as to have dealt with the actual contract between the parties, it would have found respondent indebted to appellant in the sum of $672.15. That should have been considered as not open to question in this case and the finding of fact as to value of assets should have been made accordingly.
Other matters decided before, which are urged upon our attention as in the same class as the one we have referred to, we do not find so classible. They were subservient to the question of what the real contract was and are superseded by the fact, now established, that respondent’s interest in the corporation was one-twentieth of the corporate property, but, by mistake, that was not enforceably embodied in the writing. This has particular reference to the circumstance of reduction of capital stock by 174 shares. It is useless to go into details now with reference to the matter.
We do not overlook the contention of respondent’s counsel that the temporary injunction wholly restrained appellant from enforcing the former judgment pending this action, was based on proceedings disclosing the whole situation and was consistent only with the theory that if the facts alleged were true the entire judgment might be held unconscionable, and that the injunctional order is res adjudicata as to the facts thus presented. We are not familiar with principle or authority sustaining that position. A temporary injunction in an action does not settle anything finally. Its sole function is to preserve the existing situation until the termination of the litigation to the end that it may be effective to do justice between the parties in fact as well as in form.
As appellant, in the present aspect of the case, should have recovered judgment in the former action for $672.15, and interest from the time of its commencement and costs
The judgment appealed from must, therefore, be modified accordingly and as so modified affirmed.
By the Court.- — So ordered. No costs to be taxed in this court in favor of either party, except clerk’s fees, attorneys’ fees, and $75 for printing are allowed appellant.
Dissenting Opinion
The appellant moved for a rehearing. The respondent moved for a modification of the mandate and for a rehearing on the question whether the judgment appealed from should not be affirmed in its entirety instead of as modified. The motions were denied, and the following opinion was filed, ■ October 27, 1914:
(dissenting on motion to amend the mandate). A motion in this case was made here to amend the mandate so as to affirm the whole judgment of the court below.
I am of opinion that the motion should be granted. I think the orders of the court below overruling the demurrer to the complaint and ordering the enforcement of the whole judgment restrained pending the action, affirmed on appeal to this court, upon the record and all the facts in the former case, are res adjudicates.
An order made on a motion for a preliminary injunction, affirmed on appeal to this court, is res adjudicata upon the same facts and record upon which the order is based in subsequent proceedings in the case. New York & N. J. T. Co. v. Metropolitan T. & T. Co. 81 Hun, 453" court="N.Y. Sup. Ct." date_filed="1894-11-16" href="https://app.midpage.ai/document/new-york--n-j-telephone-co-v-metropolitan-telephone--telegraph-co-5507602?utm_source=webapp" opinion_id="5507602">81 Hun, 453, 31 N. Y. Supp.
The order made by the court below restraining the enforcement of the whole judgment pending the action and affirmed by this court was based upon all the facts in the case, including the record in the former action, and constituted the law of the case under repeated decisions of this and other courts.