Pleshek v. McDonell

110 N.W. 269, 130 Wis. 445, 1907 Wisc. LEXIS 283

• Court: Wisconsin Supreme Court
• Decided: January 8, 1907
• Status: Published

Opinion

Kerwin, J.

From the view we take of this case it will be unnecessary to consider the questions discussed by counsel. The action was improper under the decisions of this court. The plaintiff, if he had a right to prevent the enforcement of the execution against his property, should have proceeded by motion in the action in which the execution was issued to prevent the abusive use of the process of the court, and a separate action for such purpose cannot be maintained, since one circuit court cannot restrain the enforcement of a judgment in another circuit court; and this rule applies where one circuit court is invoked to restrain the enforcement of a judgment by an independent action in the same court. Endter v. Lennon, 46 Wis. 299, 50 N. W. 194; Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 N. W. 388; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891; Jackson M. Co. v. Scott, ante, p. 267, 110 N. W. 184. In the latter case this question has been fully considered, and further discussion of it is unnecessary. Tbis action is ruled by tbe foregoing cases in tbis court.

By the Court.- — Tbe judgment of tbe court below is reversed, and the cause remanded with instructions to dismiss tbe action.