Smith v. Pretty

22 Wis. 655

Opinion

Paine, J.

If Towle, were affected by tbe judgment in this action, tbe order setting it aside and allowing him to come in and defend, would be proper enough. But he is not affected by it. He purchased the interest of Matthews, under whom Pretty held as tenant. And assuming that Pretty was in possession when the papers in this action were served on him, and that he 'abandoned the possession a short time before his lease expired, to Towle, still, after his lease expired, Towle was in possession, not under Pretty, but by virtue of his ownership of the reversion. The judgment subsequently rendered against Pretty by default, had no effect, therefore, as against Towle, and he ought not to have been put out of possession under it. The judgment is good only against the defendant and those claiming under him, or in privity with him. And where another person is in. possession claiming under a paramount title, it cannot be executed as against him. This has frequently been held not only in respect to the writ of possession issued to enforce decrees in chancery, but also as to executions in ejectment. Gelpke v. R. R. Co., 11 Wis., 462, and cases cited; Clark v. Parkinson et al., 10 Allen, 133; Johnson v. Fullerton, 44 Pa. St., 446.

In Clark v. Parkinson the party sought to be ejected was in possession at the time the suit was commenced. But it is immaterial whether that is so, or whether he comes into possession afterwards, provided he does not come in under the party to the suit, but by virtue of an adverse and paramount title. The grounds upon which the rule rests are the same in either case. .

Towle, therefore, had no interest in this judgment, but his remedy, as the cases cited show, was to apply to the court for a writ of restitutioh.

By the Court. — The order appealed from is reversed, with costs.