Jackson Milling Co. v. Scott

Marshall, J. If the petition is in accordance with the facts the judgment in this action has been paid and ought to have been satisfied. It is apparently a lien on the lands mentioned, breaching the covenant in appellant’s deed to Foxen, and while it is not a lien in fact, respondent will, if not prevented in some judicial proceedings, treat the apparent lien -as an actual incumbrance, necessarily, it would seem, to some extent prejudicing appellant. So although he is not a party to the action he is affected by the judgment, in that he is interested in having the facts established as to whether it has been paid or not, and in preventing its enforcement, especially against the land in question. So long as it stands it will be a menace to the title which he has covenanted to be free from incumbrances. That gives him sufficient standing in respect to the judgment to entitle him to the use of some judicial remedy to obtain a satisfaction thereof, if it has been paid, and in any event to have it declared not enforceable against the land mentioned. If it has not been paid it cannot be •doubted but that Foxen could maintain an action to remove the cloud on his title created thereby and to prevent such title from being further clouded by proceedings to enforce it. It would seem to follow, necessarily, that appellant is entitled to a remedy for the same relief, since he must successfully defend his covenant or pay the damages caused by a breach thereof. The fact that the damages recoverable at law against appellant can only be nominal till Foxen shall have been compelled to pay the judgment as a valid claim against the land does not change the situation. The latter is entitled — 271 — to a judicial remedy to clear Ms title from the cloud thereon and to prevent a further cloud. Appellant would he a proper party thereto. In the proceedings he would he entitled to litigate with respondent the questions presented hy the petition. Therefore, he must he entitled, on his own initiative, to a remedy against respondent. That would seem so on principle, hut we have ample authority sustaining the proposition that he who has sold and warranted the title to realty may maintain judicial proceedings to remove a cloud on such title or to prevent a cloud thereon. Ely v. Wilcox, 26 Wis. 91; Pier v. Fond du Lac Co. 53 Wis. 421, 10 N. W. 686; Hartford v. Chipman, 21 Conn. 488, 499; In re Phillips, 60 N. Y. 16; Sutliff v. Smith, 58 Kan. 559, 562, 50 Pac. 455; Jackson v. Kittle, 34 W. Va. 207, 12 S. E. 484; Remer v. Mackay, 35 Fed. 86. It does not seem that the dismissal of the petition can he justified because it was not addressed to the court instead of to the judge thereof. It is considered that the mere addressing of it to the judge was a harmless irregularity that could not have misled any one, since the showing in the petition was expressly to the court and the matter was treated as an application thereto. E"or do we think that the prayer for a judgment instead of an order is of any moment. The dismissal cannot be justified' because the petitioner was not a party to the action. That is not an open question. It is ruled by Platto v. Deuster, 22 Wis. 482; Endter v. Lennon, 46 Wis. 299, 50 N. W. 194; Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 N. W. 388; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891, and other cases. In such cases it is expressly said that a proceeding of this sort, whether hy a party to the action or a stranger, is proper. Of course the expression as to a stranger refers to one not a party to the action hut interested, nevertheless, in preventing the enforcement of the judgment, either at all, or in the -way threatened or attempted. — 272 — The all-important question on this appeal is this: In a case where a person, not a party to an action in which a judgment has been rendered, is interested in preventing the enforcement thereof, and such enforcement as to him would be unjust because of the judgment having been paid or its never having been a lien or claim against any property of his, and it will be enforced, nevertheless, to his prejudice, as an existing indebtedness, may he apply by petition for relief in the action or must he bring an independent action in equity for relief? That no court has jurisdiction of the subject except the one in which the judgment was rendered, was decided in the cases referred to, but how about the court in which the judgment was rendered ? Is that court powerless, in the limited sense of the term “jurisdiction,” to give the person entitled to relief the use of its equity power in an action commenced by him? As an original proposition it would seem that the last question should be answered in the negative. There is nothing in the Code, either expressly or inferentially, to the contrary, as we understand it, while its spirit and purpose is that, where there is a wrong which the law recognizes, to be redressed or to be prevented, as to any person, he shall have a judicial remedy to that end by the procedure which the written law indicates. There was a logical reason for holding that one circuit court does not possess jurisdiction to restrain the enforcement of a judgment rendered in another circuit court, but where the latter is called upon to deal with a judgment, as in this case, it is difficult to assign any good reason why there is a want of jurisdiction to do so by an independent action under our Code system, or why the court, if the remedy by petition is, proper, should not at least have the right, in its discretion, to require the party to commence an independent action where the matter to be determined is so complicated that, in the judgment of the court, the subject can thereby be dealt with in a more orderly way than on petition in the — 273 — old action. It is not unlikely that if we were permitted to deal with the matter unhampered by previous decisions we might hold that the court in which a judgment has been rendered may so deal therewith, and that there is no question of jurisdiction, even in its most limited sense, involved in whether the court should be approached by petition or by action, especially none which would prevent its being approached in the latter way. Notwithstanding what has been said, the practice to the contrary has been settled by a long line of decisions .commencing with Platto v. Deuster, 22 Wis. 482, decided in 1868, and by affirmance thereof over and over again down to Stein v. Benedict, 83 Wis. 603, 53 N. W. 891, decided in 1892, where it was so strongly entrenched as to leave no opportunity whatever for the court to change its position without reversing that which has been as firmly established as anything could well be by judicial decisions. The rule as regards one circuit court restraining the enforcement of a judgment in another circuit court, by the cases referred to, applies with equal force where one circuit court by action is invoked to restrain the enforcement of a judgment by an independent action in the same court. In Endter v. Lennon, 46 Wis. 299, 50 N. W. 194, it was said: “One court of equity will not enjoin the process of another. One suit in equity will not lie to enjoin process issuing in another. The objection is fatal, whether the second suit be brought in the same or in another court, by a party or by a stranger to the first suit. The proper course by either party or stranger to the first suit is to apply by petition for relief in that suit.” In Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 N. W. 388, it was said that the rule of Endter v. Lennon, supra, and similar cases is the same regardless of whether the judgment sought to be restrained is at law or in equity; and in Stein v. — 274 — Benedict, supra, where the relief sought was very complicated, and the situation to be dealt with was one, ordinarily, peculiarly within the field of equity by an independent action, such an action was brought in the court where the judgment sought to be restrained was entered, and the 'question of whether that procedure was proper was raised by demurrer upon the ground of. want of jurisdiction to entertain the action. It was argued by able counsel, the objection was sustained in the court below, and upon appeal the judgment after mature deliberation was affirmed. In deciding the case this court said: “The proper course is'to apply by petition for relief in the first suit. The power of the court in which the first judgment or decree has been rendered, to grant relief in cases like this, is undoubted. This has long since passed beyond the field of discussion, and must be regarded as settled beyond dispute. . . . The objection to the jurisdiction of the court was sufficient to defeat the action. . . . Without considering whether the objection to the jurisdiction of the court may not be raised on such demurrer [referring to a demurrer ore tonus'], or the court may not of its own motion act on the objection when not raised by a formal demurrer, . . ., it must be held that it was here properly presented, so that the court might act on it and dismiss the complaint, upon which it was plain no relief, according to the settled decisions of this court, ought to be granted.” It should be noted that the term “jurisdiction” in this class of cases is not used in its technical sense: that which would render what is done void, but in the modified sense discussed at length in Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909: in the sense that the practice is so firmly settled in-respect to the subject, and the confusion that would result from departing from it would be so great and prejudicial, that the court ought not to act contrary thereto whether objection is made by counsel or not, though in case it should act the result would be a binding judicial determination till reversed on appeal or set aside in some proper direct proceedings. — 275 — So we cannot well come to any other conclusion than that appellant took tbe only course open to Mm. True, there is a contrary indication in Coe v. Manseau, 62 Wis. 81, 22 N. W. 155, but the restrictions there put on Platto v. Deuster, swpra, and Endter v. Lennon, supra, were not warranted by the facts and were clearly overruled in the subsequent 'cases we have cited. Though it seems that a trial court ought, at least, to be free to take the course which the learned court did in this case, the rule, as we have seen, is so firmly settled to the contrary, that we must leave it to the legislature to change the practice, if it is to be done. It is better for the court to adhere to a wrong rule of procedure, from an original standpoint, long established, which leaves parties a full remedy, than to change it by overruling decisions made from time to time during more than a quarter of a century. It does not seem that any question was left that need be discussed on this appeal. The orders appealed from must be .-reversed. By the Gourt. — So ordered.