Hills v. Laporte

Cole, J. According to tbe record, after tbe finding of tbe court in favor of tbe plaintiffs, but before tbe entry of judgment, tbe defendant made and filed bis claim for improvements under tbe statute. Thereupon tbe court ordered an [115] issue to be' made up for tlie trial of such, claim. Afterwards the usual judgment in ejectment was rendered in favor of the plaintiffs, before the claim for improvements was disposed of. This was error. The proper practice was settled, upon full consideration of the provisions of the statute, in Thomas v. Rewey, 36 Wis., 328, and Scott v. Reese, 38 id., 636. The ruling in these cases was sanctioned and followed in The Phœnix Lead Mining and Smelting Co. v. Sydnor, 39 Wis., 600. In Scott v. Reese the chief justice thus clearly states the practice contemplated by the statute: “ The claim and the issue upon it must not only be made, but the issue must be tried, before any judgment should be rendered in the ejectment.” A bare reference to those decisions is all we deem it necessary to say in pointing out the error in the present judgment. The counsel for the plaintiffs argued that the entry of judgment before the claim for improvements was disposed of, was a mere irregularity, not affecting the merits, and ought to be disregarded. Ve cannot adopt this view without overruling the decisions above referred to, which we are not disposed to do. The judgment of the circuit court must be reversed, and the cause must be remanded with directions to proceed and try the issue on the claim for improvements. By the Gowrt. — It is so ordered.