Farmers' Loan & Trust Co. v. Walworth County Bank

23 Wis. 249

Opinion

PaiNE, J.

This is clearly an attempt in equity to litigate over again tbe controversy involved in a former suit at law between tbe same parties, and to get rid of tbe judgment which tbe appellant obtained in that suit. There is no substantial ground for equitable relief set forth, unless it is found in tbe allegation of surprise at tbe ruling of this court — that tbe refer ence of tbe case at law to tbe circuit judge was, in effect, a submission to arbitration, and that tbe decision of tbe arbitrator would not be reviewed. This was a mistake of law, and is not of sucb a character as affords ground for equity to interfere with a judgment in a suit at law in wbicb tbe parties bad an opportunity to litigate tbe entire merits of tbeir controversy. See Danaher v. Prentiss, 22 Wis. 311; Railroad Co. v. Shippen, 2 Pat. & Heath (Va.) 327.

There is nothing to show that tbe plaintiff might not, or even;that it did not, avail itself in the suit at law of all tbe grounds of defense upon wbicb it now seeks to avoid the judgment. It does not even appear that tbe mistake, sucb as it was, prevented this. Its only effect was to prevent a review on appeal. And it would be an extraordinary interposition on tbe part of a court of equity to set aside a judgment obtained, for aught that appears to tbe contrary, after a full and fair litigation upon tbe merits before tbe circuit judge, merely upon tbe ground that tbe counsel bad, by a mistake of law, cut off tbe right of review.

Tbe motion to dissolve tbe injunction ought to have prevailed, and tbe order refusing it must be reversed, with costs, and tbe cause remanded for further, proceedings.

By the Court. — Ordered accordingly.