Nichols v. Galpin

The following opinion was filed February 10, 1925: Rosenberry, J. The plaintiff upon the trial abandoned all claim for the relief prayed for in his complaint, no doubt for the reason that there was no evidence which tended to prove that it was ever the mutual intention of the parlies to insert a-clause in the contract of October 28, 1920, limiting the liability of the plaintiff. At most the evidence offered by the plaintiff tended to show that the note and mortgage were delivered with the understanding that the corporation should do something to relieve the plaintiff from personal liability on the note and mortgage. The evidence offered on behalf of the defendant showed that there was no such agreement. The court having found, however, in favor of the plaintiff, we will assume in our consideration of the case that the facts were as contended by the plaintiff. As already pointed out in the statement of facts, this same contention was set up in the foreclosure action and there litigated and judgment went against the plaintiff in this action, the defendant in that action. If we consider the prayer for relief in this case amended in accordance with the relief actually granted by the court, this action becomes one somewhat in the nature of a bill of review to review the determination of the court in the foreclosure action. In Crowns v. Forest L. Co. 102 Wis. 97, 78 N. W. 433, this entire subject was reviewed and it was held that under our Code an equity action in the nature of a bill to review cannot be maintained. There is no allegation of surprise, fraud, excusable neglect, or other allegation of fact which would in any way entitle the plaintiff here to relief from the judgment rendered against him in the foreclosure action. The judgment here is that the note and mortgage in question [491] are the obligation of the Willy Company and that the plaintiff, A. L. Nichols, is not liable upon the note and mortgage, whereas in the foreclosure suit he was adjudged to be liable and direction for judgment for deficiency was included in the foreclosure judgment. Ify starting an action for the alleged purpose of reforming a written instrument the plaintiff cannot secure a review of a judgment in another action in which the court had jurisdiction of the parties and the subject matter. Plaintiff had his day in court upon the questions adjudicated in this action and he is concluded by the former judgment. By the Court. — The judgment of the circuit court is reversed, with directions to dismiss the plaintiff’s complaint, with costs. A motion for a rehearing was denied, with $25 costs, on April 7, 1925.