Thornton v. Madison Woolen Mills

41 Wis. 265

• Court: Wisconsin Supreme Court
• Decided: August 15, 1876
• Status: Published

Opinion

Lyon, J.

After the cause was argued in this court, the plaintiffs and the defendant Jones negotiated together concerning the subject matter of the action, and'the result of such negotiation was, that Jones paid the plaintiff a portion of the mortgage debt, or, what is the same thing, a portion of the redemption money called for by the certificate of sale, and the balance thereof in securities, to become due thereafter, and also paid the costs in this court. The plaintiffs accepted 'such money and securities in full payment of the mortgage debt and costs, and thereupon caused the certificate of sale to be canceled. The foreclosure judgment had before that time been formally discharged by an entry of the cleric of the circuit court to that effect in the record. This is more than a mere redemption.

It seems to us that these transactions dispose of the whole subject of the litigation, and amount to a discontinuance j of the action. They are in the nature of an accord and satisfaction puns dcvrrein continuance, and leave nothing for adjudication. Kercheval v. Doty, 31 Wis., 476.

Had this whole controversy been submitted to arbitrators, and had the arbitrators awarded that the parties should do precisely what they have done, there can be no doubt that the submission and award, under several decisions of this court, would have worked a discontinuance of the action. Bigelow v. Goss, 5 Wis., 421, and cases cited in note by Dixon, O. J. We perceive no difference in principle between such a case and one where, as in the present case, the parties adjust the controversy themselves.

The motion to dismiss the appeal must be granted, but without costs.

By the Gowrt. — Appeal dismissed.