Hathaway v. Fullerton , 11 Wis. 287 ( 1860 )

By the Court,

Paine, J.

The order appealed from must be reversed. After the plaintiff had discontinued as to Fullerton, the suit stood as though it had originally been commenced against Herbst alone. And in this position it proceeded to judgment and execution, and the premises were delivered to the plaintiff. Now if Fullerton had been concluded, or barred in any way by this judgment, it would have been a proper case for the court to relieve him by opening the judgment and permitting him to come in and defend. But he was not. Any right that he had could be fully protected by a new suit, in which he would be plaintiff. Under these circumstances, we cannot see that he had any right to insist on being made a party to the first suit, after the judgment in it had been fully executed. Even if he had prevailed, it is difficult to see how he could have obtained possession without a new action of ejectment, and we think this was his proper remedy in the first instance.

The order appealed from in this case, and also the one in the case of Jane L. Andrews and others, appellants, against the same defendants, depending on the same question, are reversed with costs.