Wescott v. Catencamp

Stevens, J. The court was doubtless led to sustain the objection made to the introduction of further proof by the fact that the order denying the application to intervene contained findings upon some of the issues raised by the pleadings in this action. Such findings were a basis for the exercise of the court’s discretion in determining whether the petition to intervene should be granted, but they did not finally determine the merits of the claims of any party to this action or to the divorce action in such manner that such party could review that determination upon appeal from the order denying the right to intervene. Upon appeal from that order the only question that could be considered was whether the court had abused the discretion vested in it. That order was res ad judicata upon no other question. The parties to this proceeding never have had their day in court upon the merits of any issue presented in this action. Even if Mary Wescott were a party to this action, the denial of her right to intervene in the divorce action would not bar her right to litigate the issues presented in this action. Coleman v. Hunt, 77 Wis. 263, 264, 45 N. W. 1085. The situation presented is very different from that considered in Jackson Milling Co. v. Scott, 130 Wis. 267, 110 N. W. 184. It is well settled that when an attempt is made to change or vacate a judgment, the application should be made in the action in which the judgment was entered and to the court that rendered the judgment, for the very ob [523] vious reason that one court will not review, set aside, or restrain the enforcement of a judgment entered by another court of concurrent jurisdiction. Here no direct attack is made upon the divorce judgment. The attack is upon the deed given before the divorce judgment was entered. The divorce judgment is not even mentioned in the complaint. Mary Wescott’s application to intervene in the divorce action was not an election of remedies which binds the parties nor does it estop the parties now before the court from proceeding in this action. Mary Wescott is not a party to this action. None of the parties to this action are in privity with her. The fact that the parties to this action purchased land upon sale upon execution issued upon a judgment in favor of Mary Wescott does not put them in privity with her. To be in privity as to these lands the parties must have succeeded to the ownership of the property here in question “directly or by mesne conveyances, by gift, by kinship, or by operation of law.” Kimberly-Clark Co. v. Patten Paper Co. 153 Wis. 69, 86, 140 N. W. 1066. “Privity relates to property only in the doctrine of res ad-judicata, and to the particular property forming the subject of the former litigation. . . . The term is applicable only to the situation of mutual succession or relation to the same right of property.” Hart v. Moulton, 104 Wis. 349, 354, 355, 80 N. W. 599. Here the parties to this action did not succeed to the same right of property which was possessed by Mary Wescott. She never had title to the property. These parties did not succeed to the ownership of this property by gift of Mary Wescott, by reason of kinship to her, or by operation of law as heirs at law or by mutual succession. They secured the property through the strong arm of the law by virtue of an execution sale. Belief that the findings made in the proceeding on the application to intervene were res adjudicata in this action [524] doubtless led the court into the error of sustaining the objection to the introduction of further evidence without giving the plaintiff the right to present his case. The court had the right to determine the issue in bar before proceeding to determine the other issues in the case. But if this method of trial was adopted, the plaintiff should have been permitted to offer such proof as he desired upon that issue before findings were made. Until all proof on that issue had been offered the court could not make its findings. Sliter v. Carpenter, 123 Wis. 578, 581, 582, 102 N. W. 27. By the Court. — The judgment is reversed, and the cause remanded for further proceedings according to law.