Ovitt v. Schumekosky

Wisconsin Supreme Court

Ovitt v. Schumekosky

200 N.W. 375, 184 Wis. 618, 1924 Wisc. LEXIS 299

CourtWisconsin Supreme Court

DecidedOctober 14, 1924

StatusPublished

Cited by2 cases

This text of 200 N.W. 375 (Ovitt v. Schumekosky) 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

Ovitt v. Schumekosky, 200 N.W. 375, 184 Wis. 618, 1924 Wisc. LEXIS 299 (Wis. 1924).

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Opinion

Jones, J.

This action was brought under sec. 3186 of the Statutes to quiet title, cancel a tax deed and other deeds, and to recover damages for trespass. No bill of exceptions was settled. On entering upon the trial the trial judge announced that the validity of the tax deed would be considered before the matter of improvements made by the defendant and his good faith would be taken up. Considerable [619]*619testimony was taken, when the court made, among others, the following" interlocutory finding:

“The plaintiff, Ovitt, holds the record title to three certain descriptions of land which will be referred to herein as lots 6, 7, and 14, but the ownership and equitable title of said lands is in Mrs. Edna G. Thackaberry, and has been in her name at all times herein mentioned.”

Thereupon the defendant made a motion to dismiss the complaint for the reason that the plaintiff was not the real party in interest. This motion was denied.

It is contended by the appellant that under sec. 2605, Stats., requiring that every action must be prosecuted by the real party in interest, except as provided in sec. 2607, the action should have been dismissed as soon as the order above quoted was made. It is urged that the statute is mandatory and imperative. It is further claimed that the order is one affecting a substantial right and involves the merits of the action. It is argued by the respondent that since the court found that the plaintiff was the owner of record, he was the real party in interest and the proper-party to bring the action. It is also claimed that the objection should have been made by answer and that the fact that a third person had the equitable title did not prevent the plaintiff from maintaining the suit, and that the proper remedy of the defendant was to move that such person be made a party. The plaintiff also contends that the order is not appealable.

The last point is well taken and is ruled by several decisions of this court. Raymond v. Keseberg, 98 Wis. 317, 73 N. W. 1010; Gill v. Hermann, 168 Wis. 589, 171 N. W. 76; Motowski v. People’s Dentists, 183 Wis. 477, 198 N. W. 465. This makes it unnecessary to discuss the other questions raised.

By the Court. — Appeal dismissed.

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Jones, J.

This action was brought under sec. 3186 of the Statutes to quiet title, cancel a tax deed and other deeds, and to recover damages for trespass. No bill of exceptions was settled. On entering upon the trial the trial judge announced that the validity of the tax deed would be considered before the matter of improvements made by the defendant and his good faith would be taken up. Considerable [619]*619testimony was taken, when the court made, among others, the following" interlocutory finding:

“The plaintiff, Ovitt, holds the record title to three certain descriptions of land which will be referred to herein as lots 6, 7, and 14, but the ownership and equitable title of said lands is in Mrs. Edna G. Thackaberry, and has been in her name at all times herein mentioned.”

Thereupon the defendant made a motion to dismiss the complaint for the reason that the plaintiff was not the real party in interest. This motion was denied.

It is contended by the appellant that under sec. 2605, Stats., requiring that every action must be prosecuted by the real party in interest, except as provided in sec. 2607, the action should have been dismissed as soon as the order above quoted was made. It is urged that the statute is mandatory and imperative. It is further claimed that the order is one affecting a substantial right and involves the merits of the action. It is argued by the respondent that since the court found that the plaintiff was the owner of record, he was the real party in interest and the proper-party to bring the action. It is also claimed that the objection should have been made by answer and that the fact that a third person had the equitable title did not prevent the plaintiff from maintaining the suit, and that the proper remedy of the defendant was to move that such person be made a party. The plaintiff also contends that the order is not appealable.

The last point is well taken and is ruled by several decisions of this court. Raymond v. Keseberg, 98 Wis. 317, 73 N. W. 1010; Gill v. Hermann, 168 Wis. 589, 171 N. W. 76; Motowski v. People’s Dentists, 183 Wis. 477, 198 N. W. 465. This makes it unnecessary to discuss the other questions raised.

By the Court. — Appeal dismissed.

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200 N.W. 375, 184 Wis. 618, 1924 Wisc. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ovitt-v-schumekosky-wis-1924.

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