Wendel v. North , 24 Wis. 223 ( 1869 )

Cole, J.

It is too clear for argument, that the defendant was concluded by the judgment in the case of Eaton against the plaintiff. He not only had notice of the pendency of that action, and was requested to employ counsel to assist in the defense thereof, but his counsel did actually appear and defend for him. And as the plaintiff was evicted under the judgment in that action, which he had defended, the judgment is conclusive upon him. He must make good his remote vendee or coven-antee, who has lost the land by reason of the paramount title. *

The intimation that it was necessary to allege and prove in this action that that title was paramount, when that question had been fully litigated in another suit, which the defendant had unsuccessfully aided in defending, is certainly without support in reason or principle. The plaintiff’s title was proven to be defective in that action: at all events, a recovery was had against him. And it is utterly immaterial, for the purposes of this action, upon what title Eaton recovered. He did recover, and the plaintiff was evicted; and the defendant, under the circumstances, was concluded by the judgment of eviction. These principles are elementary, and do not need the citation of authorities to support them.

The nonsuit was improperly granted.

By the Qourt. — Judgment reversed.