Ehrlich v. Holton ( 1938 )

The following opinion was filed June 21, 1938:

Martin, J.

The judgment of the superior court of Cook county, Illinois, was affirmed by the appellate court of Illinois, on October 16, 1934 (Wiedoeft v. Frank Holton & Co. 287 Ill. App. 592, 5 N. E. (2d) 601), and leave to appeal was thereafter denied by the supreme court of Illinois. On June 12, 1937, an order was entered by the circuit court for Walworth county, substituting the appellant as plaintiff therein in place of Rudy Wiedoeft, and allowing said substituted plaintiff to file an amended complaint. The amended complaint, among other things, alleges the rendition of the judgment in the superior court of Cook county, Illinois; that said court was a court of general jurisdiction and that personal service was made on the defendant; that the superior court of Cook county had jurisdiction of the subject matter and of the person; that said judgment was affirmed by the appellate court of Illinois and leave to appeal denied by the supreme court of Illinois; that said judgment remains in full force and not reversed or stayed; also alleges the amount due upon said judgment with interest, the assignment thereof, and that the plaintiff in this action is now the lawful owner thereof.

The respondent’s answer admits the foregoing allegations of the amended complaint except as to the assignment of the judgment. As to that fact the answer alleges:

“That as to the allegations contained in paragraph 4 of said amended bill this defendant denies that said Rudy Wie-doeft assigned said purported judgment to this plaintiff after leave to appeal to■ the supreme court of Illinois had been denied, and upon information and belief denies that he duly assigned it to him at any time and also- denies upon information and belief that this plaintiff is now the lawful owner thereof.”

Thereafter appellant procured an order from the circuit court for Walworth county directing respondent company to show cause why certain portions of the answer and counterclaim should not be stricken, and for summary judgment in accord with the prayer of the amended complaint. It appears that on December 28, 1937, the trial court filed a memorandum decision, granting appellant’s motion for summary judgment. Thereafter a rehearing was had, and on January 6, 1938, the court entered an order denying appellant’s motion to strike certain portions of defendant’s answer and counterclaim and for summary judgment.

We are of the opinion that the above-quoted portion of the defendant’s answer denying the assignment of the judgment and denying upon information and belief that the present plaintiff is now the lawful owner of said judgment, presents a very material issue. As said by this court in Holzinger v. Prudential Ins. Co. 222 Wis. 456, 461, 269 N. W. 306:

“On a motion for summary judgment, the court does not try the issues, — it merely decides whether there is an issue for trial.”

The ownership of the Illinois judgment is the basis of this action. We, of course, must and do give full faith and credit to the judgment rendered in the courts of Illinois (Ellis v. Gordon, 202 Wis. 134, 231 N. W. 585), but whether the appellant is the owner of that judgment is another question. It presents an issue for trial.

The merits having been fully litigated in the courts of Illinois, which had jurisdiction of the parties and the subject matter, cannot be again litigated in the courts of Wisconsin. The validity of the foreign judgment is not open to attack. Christ v. Davidson, 116 Wis. 621, 93 N. W. 532.

The respondent contends that the alleged assignment is champertous and void. This contention is made upon the theory that the assignment being taken by Mr. Ehrlich for his own protection, was an unlawful limitation upon his client’s right to control his action and to settle with his adversary if he chose to' do so. There is nothing champertous about an attorney taking an assignment of a judgment after it is entered though it be for his own protection to secure the payment of his fees. The only issue to be tried is: Was the judgment assigned P

By the Court. — Order affirmed.