State ex rel. Mengel v. Steber

Maksi-iam., J. Appellant having been, as held, within his rights as a tenant holding over, respondent had no cause of complaint against him, and it was, therefore, the plain duty of the trial court to render judgment of dismissal with costs. The question of whether a defendant should be judicially condemned as a wrongdoer, depends upon his status at the time of the commencement of the action to that end. That is considered too elementary to require to be more than stated. If the conclusion aforesaid were not sufficient for the case, the judgment would have to be condemned because there was no evidence before the court of a judgment having been rendered annulling the toll-road franchise. The trial judge was clearly wrong in supposing he could take judicial notice of a judgment, merely because of its having been rendered in the court in -which he was presiding. A court may take such notice in an action of any order, judgment, or proceeding in such action in such court; but that rule does not extend to any other action. This court has so decided, as counsel for respondent pointed out. McCormick v. Herndon, 67 Wis. 648, 653, 31 N. W. 303. It is also elementary. Jones, Ev. § 124 and cases cited. [312] It will thus be seen that, since appellant was rightfully in possession and use of the toll-road property when this action was commenced, there was no other course which could have been properly pursued, in closing such case, but to render a judgment of dismissal with costs, even if the annulment judgment had been pleaded and proved. The question is raised as to whether the evidence does not show the lessor to have lost its rights to appellant, under the statute of limitations or some common-law rule on the subject of laches. We are favored by an interesting argument in respect to' the matter; but it does not seem proper to decide the question of disputed title in this case. The lessor is not before the court. It is a necessary party to an action involving the question of whether it has lost its rights by adverse possession or other adverse circumstances. Sec. 2610, Stats. By the Court.-. — The judgment is reversed, and the cause is remanded with directions to dismiss the same with costs.