Sellers v. Union Lumbering Co.

36 Wis. 398

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinion

Cole, J.

We do not think the statutory provision relied on by tbe plaintiff- (Tay. Stats., 1466, § 22), authorizes tbe court to enter a judgment in tbe cause for tbe amount admitted to be due, while tbe plaintiff reserves the right to .litigate as to tbe remainder of his claim. Such a practice involves .the inconsistency of entering two judgments in tbe same cause, a proceeding in violation of the principles of tbe code. A judgment is there defined to be “ the final determination of the rights of the parties to the action ” (sec. 28, ch. 132, Tay. Stats.), while every direction of a court made or entered in writing and not included in a judgment is denominated an order (Tay. Stats., ch. 140, § 29). There is no such thing now as an interlocutory judgment in a case ; the only judgment authorized being one that finally disposes of and determines the rights of the parties. Belmont v. Ponvert, 3 Robertson, 693. Under § 38, ch. 132, Tay. Stats., tbe defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing to allow judgment to be taken against him for the sum or property, or to the effect, therein specified, with costs; and if the plaintiff accept the offer and give notice thereof in writing within ten days, then judgment is entered, which disposes of the cause. Nothing further remains for the consideration of the court, the rights of the parties being finally determined. But when the plaintiff reserves the right to further litigate some part of the cause of action, then a judgment is improper and irregular. The court may, in its discretion, under sec. 22, make-an order requiring the defendant to satisfy that part of the plaintiff’s claim admitted to be just, and may enforce the order as it enforces a judgment or provisional remedy. An execution may doubtless be issued on such an order as upon a final judgment; and in a proper case, obedience to the order maybe enforced by attachment. Russell v. Meacham, 16 How. Pr., 193. But the entry of a final judgment was not contemplated by. this provision.

It is,claimed by the counsel for the defendant, that the offer was made under sec. 38, ch. 132, and that the court could not order the defendant to pay the amount admitted in the answer to be due, reserving to the plaintiff the right to litigate the balance of his claim. But this position is clearly untenable. The language of section 22 gives ample power and discretion to the court to enforce by order the payment of the undisputed demand, before the issues on the other causes of action stated in the complaint are tried." But the payment must be enforced by order, and not by judgment. The distinction is broad between an order and judgment, and they are not to be confounded in practice.

As the record in this case shows a final judgment for the amount admitted to be due, and costs, we must hold it irregular and erroneous.

By the Court. — The judgment is reversed, and the cause remanded for further proceedings according to law.