Van Pelt v. Kimball , 18 Wis. 362 ( 1864 )

By the Court,

Cole, J.

It appears to us that tlie matters stated in the supplemental answer constitute a good estoppel, and are therefore conclusive in this action upon the question of usury. Eor the .very question necessarily decided in the suit in the United States court was, whether the note and mortgage for $3000 were usurious. This was the point necessarily and inevitably decided in that suit. The answer shows that in the cause in the United States court the respondent sought to foreclose a mortgage given for interest accruing on the mortgage now in suit, and that the appellant alleged in his defense to that mortgage that the mortgage in this suit was usurious. W hat then must have been the point decided in that suit ? Obviously whether or not the mortgage in this suit was usurious. That was the material point in issue. Only by establishing the fact that this mortgage was usurious, could the appellant succeed in the United States court in his defense to that action. That mortgage was void because this was tainted with usury. It was given for interest upon an usurious loan; therefore it was adjudged void. But it is said that the decree of the United States court in which it was adjudged that the mortgage for the interest was void, is not conclusive in this action upon the question of usury in respect to this mortgage, because the two suits are not for the same subject matter. We think this is giving to that decree quite too limited an effect. True, there the respondent sought to recover-the interest, while here he seeks to recover the principal, of an usurious loan. The defense to both is the same, namely, that the original transaction was subject to the penalties of usury. That, being the point in issue in the former suit, is not open to controversy in this. Eor it is a settled principle of law, that the same point or question, when once litigated and settled by a judgment thereon, shall not again be contested in any subsequent controversy between the same parties depending on that point or question. See Doty v. Brown, 4 Comstock 71, and cases there cited.

We think the circuit court should have permitted the Appellant to file the supplemental answer.

The order denying the motion for leave &c., is therefore reversed, and the cause remanded for further proceedings.