McLeod v. Bertschy , 34 Wis. 244 ( 1874 )

Cole, J.

But little can be said in this case after the two full and able opinions already delivered by Mr. Justice Lyon; one on the appeal from the order refusing to strike the cause from the calendar, and the other on the motion to dismiss this appeal. The questions involved in this appeal were necessarily discussed in those decisions; and, notwithstanding the views there expressed have been sharply criticised by the counsel for the appellant, we are satisfied with their general correctness. It was in substance held and adjudged in those decisions, that the plaintiff could not discontinue the whole action, even with the leave of court, where the defendant had interposed a counterclaim consisting of a substantive cause of action against him. Even if these decisions were erroneous, it is very evident that they must stand as the law of this case, upon the familiar principle of res adjudícala. But we think they rest upon sound principles, and that no evil consequences are likely to flow from them. It is said that it is inequitable not to permit the plaintiff to discontinue the entire action, but force him to remain in a foreign tribunal and litigate, at great delay, difficulty and expense, not only his own claim, but also the counterclaims of the defendant. But the plaintiff voluntarily sought this tribunal to enforce the collection of his claim against the defendant, and he ought to be willing to submit in its whole extent to the jurisdiction which he has invoked. It' may be a matter attended with difficulty and expense for him to defend against the counterclaims of the defendant at a point so remote from his residence; but this is an inconvenience not unfrequently connected with the prosecution or defense of a suit where the necessary witnesses reside at a distance from the place of trial. And if the defendant has the right to have the counterclaims which he has interposed, adjudicated and settled in this suit, it is quite obvious that it might be unjust to him to allow the plaintiff now to discontinue the entire action. But furthermore, the court below denied so much of the motion of the plaintiff as sought to have the whole action, including the counterclaims interposed, discontinued; and it is plain that we cannot reverse that ruling unless we are prepared to affirm the .proposition of law that the plaintiff, under the circumstances, had the absolute right to discontinue the whole action without the special leave of the court. And that proposition lies at the foundation of the argument of counsel that the plaintiff has this absolute right to discontinue on payment of costs, and that the code has not changed that right even where a counterclaim is set up by the defendant in the action, upon which affirmative relief is asked. We have already held in this case, after full argument and such examination as we were able to give the matter, that this view of the law was incorrect, and that the plaintiff had no such right to discontinue. This conclusion was reached after an examination of the authorities in New York, to which we were then and have again been referred by counsel. We'do not understand that the provisions of the code upon the subject of counterclaims had been construed and settled in New York in 1856, at the time they were enacted in this state. If they had been, it might with reason be contended that in adopting them we took them with the construction which had been placed upon them by the courts of that state. As it was, we felt at liberty to construe them for ourselves, and to carry out their full intent and meaning. It must be conceded that these provisions in regard to counterclaims are a great innovation upon the common law, and consequently in their interpretation analogies are to be sought for in that system of jurisprudence whence these provisions were derived.

These general remarks are made in answer to some things contained in the argument of counsel for the plaintiff, without any purpose to go over the ground covered in the opinions already filed in this case. I deem it quite unnecessary to add anything to the reasoning of the former decisions. Unless they are attempted to be overruled in the very case in which they were made, this order must be affirmed.

By the Court. — The order of the county court is affirmed.