Nelson v. Campbell & Cameron Co.

Siebeokeb, J. From the foregoing statement of the case it appears that the plaintiffs claimed the right to recover damages for the removal of the timber from the land owned by them, upon the ground that they had not recovered any damages for such trespass in their action against Churchill theretofore prosecuted to judgment. The charge in the complaint is a general one of trespass for removal of timber from plaintiffs’ land between certain dates. The record of the trial shows that after plaintiffs had offered their evidence, tending to show that defendant had removed timber between the dates as alleged, the defendant then suggested to the court that it would defend upon the ground that the timber for which plaintiffs now sought to recover was, upon the facts adduced in evidence, included in the recovery in the action .against Churchill, and that it had been fully paid for by payment of the plaintiffs’ judgment in that case. At this point in the trial plaintiffs’ counsel admitted payment to them of the judgment in the Churchill case, and informed the court that they did not claim the right to recover damages for the taking of timber from their premises for which recovery was had in the Churchill action, and they called for a ruling of the court to determine the extent of the recovery in the Churchill suit. The court thereupon ruled that the recovery in the Churchill [85] case was limited to a recovery for tbe timber removed after February 3, 1899, under tbe pretended authority of Churchill, given by the bill óf sale bearing this date, and that the damages now claimed were not included in that recovery. This ruling was based upon the record and the evidence in the Churchill case, which had then been offered and was regarded as in evidence in this case. Plaintiffs’ position before the court upon the question involved is fully disclosed as admitting that they could not recover for any timber included in their former recovery against Churchill. It was not objected that the question of estoppel by a former recovery could not properly be shown under the general issue raised by the pleadings. Court and counsel treated the subject as properly within the issues and tried the case upon that theory. Under these circumstances we deem it appropriate to regard the answer as amended to that effect. Gill v. Rice, 13 Wis. 549. It remains to be determined whether the court erred in its ruling on this subject. An examination of the record and evidence in the Churchill case shows that the present plaintiffs prosecuted that suit and demanded damages for the removal of all the timber from the land in question. The evidence of both these plaintiffs in that action, as well as that of the 'other witnesses sworn by them, clearly claimed and tended to show that all the timber on the land had been removed by the present defendant under the claim of authority from Churchill, and that Churchill was liable for all the damages plaintiffs had suffered by and on account of such trespass. There appears to have been no dispute upon the trial of that action of the claim made by plaintiffs that the defendant had tahen and removed all of the timber from this land, although Churchill and the present defendant claimed and insisted that it was removed by the latter under purchase of it from Churchill as owner of. the premises. The jury found in that action that Churchill had no right to or interest in the land and that he was liable to the plaintiffs for the damages sus [86] tained by tbe removal of tbe timber by tbis defendant under tbe alleged sale. Tbe court submitted tbe question to tbe jury as to wbat amount of damages plaintiffs bad sustained upon tbe plaintiffs’ claim in that regard in tbis prior case. From tbis it results that, since tbe jury found plaintiffs were entitled to a verdict in that action, tbey must be beld to bave assessed- plaintiffs’ total damages in tbe removal of all tbe timber from these premises. Tbis amount bas been paid and accepted by the plaintiffs. To permit a recovery in tbis action, under tbe circumstances, would of necessity result in allowing plaintiffs damages for tbe removal of timber wbicb was included in tbe former judgment. Plaintiffs’ counsel frankly conceded at tbe trial in tbe lower court and in argument on appeal in tbis court that tbe law would not permit them to recover damages wbicb were included in tbe Churchill case, but it was contended that tbe facts showed that tbe present was not included in tbe former. Tbis contention is not sustained by tbe facts. Tbe record is clear and undisputed that tbe jury in tbe Chur chill case must bave included in their award of damages those now sought to be recovered. Tbe court should bave so ruled upon tbe trial. By the Court. — Judgment reversed, and tbe cause remanded with directions to award judgment for tbe defendant. Oassoday, C. J., took no part.