Lutien v. City of Kewaunee

Wisconsin Supreme Court

Lutien v. City of Kewaunee

139 N.W. 312, 151 Wis. 607, 1913 Wisc. LEXIS 22

CourtWisconsin Supreme Court

DecidedJanuary 7, 1913

StatusPublished

Cited by11 cases

This text of 139 N.W. 312 (Lutien v. City of Kewaunee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lutien v. City of Kewaunee, 139 N.W. 312, 151 Wis. 607, 1913 Wisc. LEXIS 22 (Wis. 1913).

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Opinion

Marshall, J.

The judgment upon the former appeal foreclosed all questions as regards this case, except as to whether facts existed, rendering the statutory bar inapplicable. No question of that kind was presented on the oral argument nor do we find any such discussed in the brief of counsel for appellants. We are favored by a discussion of whether the general charter provision for extending the corporate limits of cities is valid, and of whether the ordinance closing the annexation proceedings is unconstitutional. They are purely questions of law and not within the letter or spirit of the right saved to appellants upon the former appeal.

All mere questions of law which were involved in the case before, whether thought of by counsel and argued or not,' were foreclosed by the decision. A judgment is just as conclusive as to minor questions which would have turned the result either way according to their determination, as upon the major or ultimate proposition, whether more than inferentially presented or not. Wilcox v. Bates, 45 Wis. 138; McDonald v. State, 80 Wis. 407, 50 N. W. 185; Ean v. C., M. & St. P. R. Co. 101 Wis. 166, 76 N. W. 329; Rupiper v. Calloway, 105 Wis. 4, 80 N. W. 916; Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918. In the latter case it was held that a determination made here upon appeal, involving the sufficiency of a complaint, is conclusive between the parties to the action on all questions covered by it. It is not necessary [610]*610that each particular minor question should he mentioned and specifically passed upon. The decision of the ultimate matter necessarily covers all, essentially, subsidiary elements so as to make the determination of the latter harmonize with the general result. It must be plain that the former decision here was wrong if the general charter law or any part thereof, vital to the annexation proceedings or the ordinance involved, is unconstitutional. Therefore, for the case at least, all such questions were set at rest by such decision.

By the Court. — Judgment affirmed.

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Marshall, J.

The judgment upon the former appeal foreclosed all questions as regards this case, except as to whether facts existed, rendering the statutory bar inapplicable. No question of that kind was presented on the oral argument nor do we find any such discussed in the brief of counsel for appellants. We are favored by a discussion of whether the general charter provision for extending the corporate limits of cities is valid, and of whether the ordinance closing the annexation proceedings is unconstitutional. They are purely questions of law and not within the letter or spirit of the right saved to appellants upon the former appeal.

All mere questions of law which were involved in the case before, whether thought of by counsel and argued or not,' were foreclosed by the decision. A judgment is just as conclusive as to minor questions which would have turned the result either way according to their determination, as upon the major or ultimate proposition, whether more than inferentially presented or not. Wilcox v. Bates, 45 Wis. 138; McDonald v. State, 80 Wis. 407, 50 N. W. 185; Ean v. C., M. & St. P. R. Co. 101 Wis. 166, 76 N. W. 329; Rupiper v. Calloway, 105 Wis. 4, 80 N. W. 916; Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918. In the latter case it was held that a determination made here upon appeal, involving the sufficiency of a complaint, is conclusive between the parties to the action on all questions covered by it. It is not necessary [610]*610that each particular minor question should he mentioned and specifically passed upon. The decision of the ultimate matter necessarily covers all, essentially, subsidiary elements so as to make the determination of the latter harmonize with the general result. It must be plain that the former decision here was wrong if the general charter law or any part thereof, vital to the annexation proceedings or the ordinance involved, is unconstitutional. Therefore, for the case at least, all such questions were set at rest by such decision.

By the Court. — Judgment affirmed.

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Bluebook (online)

139 N.W. 312, 151 Wis. 607, 1913 Wisc. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lutien-v-city-of-kewaunee-wis-1913.

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