Rogers v. Hœnig

Oeton, J. "Without considering the merits of the motion to set aside the verdict and for a new trial in this action, upon which the order of the circuit court was made, and from which this appeal is taken, there appear to be two objections, either of which is fatal to this order. First. A motion for the same purpose, and founded siib-stantially upon the same grounds, had been denied, and the matters of such motion had become res adjvdicata. Second Ward Bank v. Upman et al., 14 Wis., 596; Cothren v. Connaughton, 24 Wis., 134; Kabe v. The Vessel “Eagle” et al., 25 Wis., 108. The judge of the circuit court has stated in the bill of exceptions, that it was his understanding that the first order was made without prejudice, and that it was inadvertently signed in its present form. The order of record is without qualification or reservation, and it must therefore be held [363] to be conclusive, until it bas been modified in some proper way and the statements of the judge even, extra-judicially expressed, whether in a bill of exceptions or otherwise, cannot be taken to change or impeach the records of the court. Greenl, on Ev., § 522; Walker v. Rogan, 1 Wis., 597; Attorney Gen. v. Lum, 2 Wis., 507. The records of the court are amendable in a proper time, but then only upon motion. Hill v. Hoover, 5 Wis., 386. Secondly. This order was not only not asked, but was made against the objection and protest of the defendant himself. It appears that the defendant, although holding the office of sheriff, had not taken possession of the property in question in his official capacity, but as the agent of one Merchant B. Bogers, the mortgagee; that it was claimed and recovered in this action by the plaintiff as the owner; that the defendant had fully paid the judgment for damages and costs, and had expended considerable money and time in the litigation, and had demanded of said Bogers reimbursement therefor, which had not been paid; that said Bogers was insolvent, and that he did not wish further litigation; and that these motions were made, and probably this appeal was taken, by said Bogers, in the name of the defendant, but against his will. ' It is hard to conceive by what law or right a party to a suit, under such circumstances, can be compelled to renew and- continue the litigation after judgment, whether he is made such party by virtue of his official duties, or of his action as the agent for another, in respect to the subject matter of the suit. Either as an officer or agent, in such case, he would have the right to demand indemnity at least, before being compelled to incur the expenses and responsibilities of such further litigation. Crocker on Sheriffs, § 446; Wharton on Agency, § 340. In this case, where the tort complained of was committed by the agent at the instance and by the direction of his principal, such principal is also liable, and might have been made a defendant alone, or joined with the agent [364] (Wharton on Agency, § 474); and he might have applied at any time to become a party, or to obtain leave to manage and conduct the suit in the name of the agent, and at his own expense. At all events, nothing has been shown in this case to take it out of the rule that no one except the party himself can make such a motion, but the very best of reasons are shown why he should not do so. Ward v. Clark, 6 Wis., 509; Packard v. Smith, 9 Wis., 184, and many other cases decided by this court. By the Court. — The order of the circuit court is reversed, with costs. Ryan, C. J., took no part.