Wm. Marnitz Co. v. Richards

Barnes, J. It is conceded that Richards agreed to purchase $3,000 of the capital stock of the corporation, and that there was paid on such purchase $674.62. Richards brought an action to recover this latter sum, on the ground that when he left the employ of the present plaintiff he entered into an agreement with it whereby the contract for the purchase of the stock was abrogated and set aside and the Marnitz Company agreed to pay him the amount advanced on the purchase of such stock. The answer denied these averments, but the court found the facts to be as claimed by Richards and gave judgment in his favor, which was affirmed on appeal to the circuit court and paid. There was no theory on which Richards was entitled to the return of the money advanced on the purchase of the stock, except that a new contract was made abrogating the former agreement in consideration of the payment to Richards of the amounts paid on the purchase price of the stock. The existence or nonexistence of the subsequent alleged contract on which Richards relied was the vital issue in the case. The final judgment settled that issue for all time in Richards’s favor and beyond direct or collateral attack. That judgment declares that after about the middle of February, 1912, when the transaction took place, there was no agreement on the part of Richards to make any further payments on the stock purchased and that then and thereafter he ceased to have any interest in said stock. The Marnitz Company is endeavoring to open up this question for further litigation by bringing an action to recover the difference between the sum agreed to be paid for the stock and the amount paid thereon. It is elementary that this cannot be done. Gerbig v. Bell, 143 Wis. 157 (126 N. W. 871) and cases cited on p. 163; Barney v. Babcock’s Estate, 115 Wis. 409, 91 N. W. 982. [283] The pleadings, findings, and judgment in the first action are part of the motion papers in the present proceeding. No issue is raised on the facts. Counsel for appellant says in his brief: “The sole question thus presented is, Was the action tried in the civil court conclusive on the subject matter involved in this case, admitting that the parties thereto were identical with the parties to this action V’ Counsel must either be in doubt about the application of the rule of res adjudicata to the case or else the action was brought for vexatious purposes. Ordinarily the merits of the action itself will not be inquired into in an application like the one before us, further- than to ascertain that there was a good-faith controversy involved. Where, as here,’ the facts are of record and are before the9 court and are not disputed and are in fact admitted, and it clearly appears that plaintiff has no cause of action, it is within the sound discretion of’the trial court to set aside the service of the garnishee summons and dismiss the proceeding. The plaintiff has not been prejudiced by the order appealed from and has no reason to complain of it. Orton v. Noonan, 27 Wis. 586; German Am. Bank v. Butler-Mueller Co. 87 Wis. 467, 58 N. W. 746; Thoen v. Harnstrom, 98 Wis. 231, 73 N. W. 1011; Dahlman v. Greenwood, 99 Wis. 163, 167, 74 N. W. 215. These cases are not precisely in point as to facts involved, but they establish the principle on which this decision is based. By the Court. — Order affirmed.