Fenske v. Kluender

Equity. (1, S) Action to annul judgment: Where and how commenced: Who may maintain?, (3) Laches. 1. An action to review and annul a judgment must be brought in the court in which such judgment was rendered, and leave must first be obtained upon petition supported by affidavit. 2. Whether such an action may be maintained by one who was not a party to tlie action in which the judgment was rendered, is not determined. 3. The question of laches in asserting title to land which had been taken for public use, somewhat 'considered.

APPEALS from the County Court of Milwaukee County. During the year 1880 the city of Milwaukee, by due proceedings, condemned to the public use lot 5, block 165, in the Second ward of that city, for the extension of a public park. Damages were awarded to the owner of the lot for such taking,— $3,400 for the ground, and $2,850 for the building thereon,— in all, $6,250. At that time the record title to such lot was in the defendant Louise Fenske, who was then, and still is, the wife of the plaintiff. Before the city had paid such damages an action wras brought in the circuit court by the defendant William Kluender, and Louise Kluender, his mother, who claimed to be the owners of such lot, against Mrs. Eenske and the city, for the purpose of enforcing payment of such damages by the city to them. The action resulted in a judgment for the plaintiffs against the city for the amount of such damages and interest. That case was before this court three times on appeals. 53 Wis. 118; 57 Wis. 636; 59 Wis. 35. The present action was brought in the county court by the plaintiff, Frederick William Fenske, after judgment was rendered in the former suit (to which he was not a party), to annul such judgment, and to recover the same damages. The averments of the complaint are briefly as follows: In 1866 one Ernst Weisfuss, commonly called Ernst Kluen-der, purchased the lot in question, paying therefor $700 or $800, and took a conveyance thereof to himself, which was duly recorded. He afterwards purchased a house for about $650, and moved it upon the lot. He, together with his mother, Louise Kluender, his step-father, Christian Kluender, and his sister, now Mrs. Fenske, occupied the premises. Ernst died in 1870, leaving a will, by which he devised the lot to his sister, Louise. The will was duly proved, and the lot assigned to her. She continued to occupy it with her mother. Christian Kluender died in 1871 intestate. The defendant William Kluender is the son of Christian and Louise Kluender, and the half-brother of Mrs. Fenske. Previous to 1875 the plaintiff entered into negotiations for a marriage with his present wife, and to induce him to marry her, the defendant William Kluender stated to him that his sister owned the premises in question. In part in consideration of such representations the plaintiff married Louise in 1875, and continued to reside with her on the same premises. The lot was much below the established grade of the adjoining street, and required a large expenditure of money to ñt it for residence purposes, and Mrs. Fenske expended about $575 for street improvements. Being unable further to improve the lot, an arrangement was entered into between her and the plaintiff, by which, in 1876, she conveyed the premises (through a trustee) to her husband, in consideration whereof he expended thereon in inqjrovements over $5,000, and repaid to his wife the' sums previously expended by her. The plaintiff took such conveyance and made such expenditures in good faith, and without any knowledge or suspicion that there was any defect in his title to the lot, or any trust in favor of William Kluender or any other person affecting the title thereto. The complaint then alleges the condemnation of the lot by the city, and that the city is ready and willing to pay the amount appraised to the owner thereof when such owner is ascertained. Also a general statement of the proceedings in the above-mentioned action of Kluender v. The City of Milwaukee and Mrs. Fenske, and the recovery of a judgment therein by the plaintiffs in November, 1882. It alleges the death of Mrs. Kluender in May, 1882, and denies the allegations contained in the complaint in the original action. It also alleges demand of the city by the plaintiff for said money, and the refusal of the city to pay the same. It is further alleged that the deeds of 1876, under which the plaintiff held the title to the lot, “were placed in the hands ’of an attorney, retained by his said wife in said action,, from whom this plaintiff understood that they had no legal effect,” but that he ascertained in June, 1882, that they were valid conveyances. These deeds were not recorded until November 23, 1882. The demand for judgment is as follows: “ The plaintiff therefore demands judgment that the defendants herein be perpetually enjoined from paying over the said money, proceeds of said property, to the defendant William Kluender, or to his attorneys or assigns, or to any or either of them, and that the judgment aforesaid by the said circuit court be declared invalid and of no effect as to the plaintiff, and that the city of Milwaukee may be adjudged to owe and pay the said proceeds to the plaintiff as the true owner of the said property condemned and taken by it as aforesaid; and that the defendant William Kluender, his attorneys, agents, and assigns, may be perpetually enjoined from enforcing his said judgment against the city of Milwaukee, and from collecting or attempting to collect from said city any part thereof.” Separate general demurrers to the complaint were interposed by the defendant Kluender and by the city. These appeals are from orders sustaining such demurrers. contended, inter alia, that if the facts stated entitle the plaintiff to any relief, either legal or equitable, the complaint should not be dismissed because the plaintiff has asked for a judgment to which he is not entitled. The prayer for relief does not go to the jurisdiction of the court. And the fact that improper relief is prayed is not ground of demurrer. Bliss on Code PI. §§ 159-162, 167, 417; Guff v. Uorland, 55 Barb. 482; Sternberger v. McGovern, 56 N. Y. 12; Emery v. Pease, 20 id. 62; Henderson v. Dickey, 50 Mo. 161; Sage v. McLaughlin, 34 Wis. 550; Brook v. Chappell, id. 405; Amory v. Amory, 26 id. 161; Supervisors of Iowa Go. v. M. P. P. P. Go. 24 id. 93; Leonard v. Pogan, 20 id. 540; Tewksbury v. Schulenberg, 41 id. 592; State ex rel. Mitchell v. Smith, 14 id. 567; Riemer v. Johnke, 37 id. 258; Gonnor v. Board, 10 Minn. 439; Meizner v. Baldwin, 11 id. 150; Kennedy v. Ml. <& St. P. R’y Co. 22 Wis. 589; Strosbe v. Feld, id. 348; Hopkins v. Gilman, id. 481. The plaintiff, not having been a party, is not bound by the former judgment, but may aver and prove that the land was his and that the money awarded on the condemnation thereof belongs to him. A judgment which as against him'controverts his title, would indeed stand in his way. Not so a judgment which establishes nothing against his title, but does locate and identify the proceeds of his property. Adams v. Filer, 7 Wis. 306; Sexton v. Rhames, 13 id. 99; Whitney v. Brunette, 15 id. 61; Gebpeke v. M. dfc 11. R. R. Go. 11 id. 454; Bean v. Fisher, 14 id. 62; Smith v. Milwaukee, 18 id. 369; Burhop v. Mil waulcee, id. 431; 8. 0. 20 id. 338; MeNaughton v. Thayer, 17 id. 290; Saveland v. Green, 36 id. 612; Rittispaugh v. Lewis, 103 Pa. St. 1; Raymond v. Richmond, 78 N. Y. 354; Hunt v. Haven, 52 N. H. 169, and cases cited. The fund created out of the plaintiff’s property is claimed by the defendant William Kluender, and is about to be seized by him under the judgment fraudulently procured by him. A trust is thereby created in plaintiff’s favor attaching to that fund, which he may properly enforce in equity. 2 Pomeroy’s Eq. Jur. secs. 1047-8, 1053; 1 Spence’s Eq. Jur. 511, 513; 2 id. 194, 253; 1 Story’s Eq. Jur. secs. 1254-59, 1265, 1275; 3 Wait’s Act. & Def. 139, 140, 732, 733.