Zastrow v. Milwaukee Electric Railway & Light Co.

Vxnje, C. J. We have not set out in detail all the allegations in the complaint that show a cause of action once existing for damages for personal injuries or for fraud in obtaining the justice’s court judgment, for we shall assume plaintiff had a cause of action for both. ' It is not quite clear that the circuit court passed upon the merits of the validity of the justice’s court judgment. If we assume that it did, then its decision upon that point is res judicata because it has not been appealed from and stands unreversed. If we assume that it did not, as we do, then plaintiff could still maintain an action to restrain the defendant from using the justice’s court judgment as a defense. But that would avail the plaintiff nothing, for she is still faced with the judgment of the circuit court dismissing her cause of action for personal injuries upon the merits. It is not claimed in the complaint that the circuit court judgment was obtained by fraud or mistake. That court was advised of all the facts this court now has as to the fraud claimed to vitiate the justice’s court judgment. So at best the circuit court judgment was only an erroneous one. The remedy for that was by appeal, and plaintiff being a minor had eleven years in which to take it. Sec. 3039, Stats. 1923. Not having appealed, the judgment dismissing her cause of action for personal injury stands unreversed and is res judicata and a bar to her present action. Stowell v. Eldred, 26 Wis. 504; [466] Crowns v. Forest L. Co. 102 Wis, 97, 78 N. W. 433; Balch v. Beach, 119 Wis. 77, 95 N. W. 132; Boring v. Ott, 138 Wis. 260, 119 N. W. 865; Laun v. Kipp, 155 Wis. 347, 145 N. W. 183; Zohrlaut v. Mengelberg, 158 Wis. 392, 148 N. W. 314, 149 N. W. 280; First Nat. Exch. Bank v. Harvey, 176 Wis. 64, 186 N. W. 215. Her present action is essentially one to recover damages for. personal injuries. The other allegations of the complaint are for the purpose of removing obstacles to her right to such recovery. From what has been said it results that the circuit court judgment, right or wrong, stands as a complete bar to her right to 'recover, and that an avoidance of the justice’s court judgment, to which she may be entitled, would do her-no good. By the Court. — Order affirmed.