Dick v. Webster , 6 Wis. 481 ( 1858 )

By the Court,

WhitoN, C. J.

The bill of exceptions informs us that at, ihe trial of the canso in the circuit court, after the plaintiff below had closed his testimony, the defendants “ did “ offer and read in evidence to the jury, the record of a “former suit commenced on the 25th day of September, 1854, “ and tried in November, 1854, by the plaintiff against the “ defendants, for the same cause of action, with the verdict of “ the jury and the judgment of the court thereupon in favor “of the defendants, and the defendants did thereupon rest “ their case.”

The bill of exceptions further states that the defendants requested the judge to instruct the jury “that the previous suit, the record of which has been read in evidence, is a bar to the plaintiff’s recovery, -unless he has shown a different title, or different circumstances from those introduced upon the former trial.”

The judge refused to give this instruction and the defendants excepted.

We are of the opinion that the instruction should have been given. The position that a previous suit between the same parties, for the saíne cause of action, which resulted in a verdict and judgment for the defendants, was a bar to a recovery, seems so clear that we shall not cite authorities to sustain it.

The counsel for the defendant in error contended that the first suit was brought to recover damages which accrued prior to the 25th of September, 1855, and that the last one was brought to recover damages which accrued prior to the 28th of November, in the same year.

He further stated that the judge charged the jury that the plaintiff below was only entitled to recover damages which accrued between the time of filing the declarations in the two suits.

Hence lie contended that the l;tst suit was not for the same cause of action as the former one.

Without stopping to inquire whether the position of the counsel would have been well taken if the facts were as lie claimed them to be, it is sufficient to observe that nothing of this appears in the record. The bill of exceptions shows that the former suit was for the same cause of action, and we must decide the case as the record presents it.

Judgment reversed.