Burkhardt Milling & Electric Power Co. v. City of Hudson

162 N.W. 429, 165 Wis. 412, 1917 Wisc. LEXIS 109

• Court: Wisconsin Supreme Court
• Decided: April 24, 1917
• Status: Published

Opinion

Rosenberry, J.

Tbis case was once before tbis court and is reported in 162 Wis. 361, 156 N. W. 1011, where tbe facts are fully stated, and a restatement of tbe facts is not necessary bere. Upon tbe return of tbe record to tbe circuit court pursuant to tbe directions of tbis court on tbe former appeal, tbe proper parties were brought in, tbe necessary amendment made, and tbe directions of tbis court fully complied with. Every matter urged upon our attention on tbis appeal was determined adversely to tbe contention of appellant bere upon tbe former appeal, with one exception. Tbe case was first started by plaintiff against tbe City of Hudson as sole defendant, and it is claimed that tbe bringing in of other parties subsequent to tbe reversal of tbe former judgment made a new cause of action which is barred by sec. 1164, Stats., and that tbe demurrer should have been sustained upon that ground.

Tbe bringing in of tbe additional parties in no way affected tbe rights of the plaintiff as against tbe appellant City of Hud,son. The cause of action against tbe City of Hudson is identical with tbe cause of action against said city as. stated in tbe former complaint. We think it clear, therefore, that it is not barred by tbe provisions of sec. 1164. Tbe right of plaintiff to recover in tbis action having been estab-lislied, the amount of recovery being merely a matter of computation, and this case having been twice before the circuit court and twice here, we are of the opinion that public interest requires that this litigation be terminated.

By ilie Oourt. — The order of the circuit court appealed from is affirmed, with directions to enter judgment for plaintiff upon its complaint.