Lancaster v. Borkowski

Rosenberry, J.

The order denying plaintiff’s motion for judgment on the pleadings is not an appealable order. It does not in effect determine the action or prevent a judgment from which an appeal might be taken. Sec. 3069, Stats.

There remains for consideration the issues raised by the appeal from the order dissolving the temporary injunction. The granting of an injunction pendente lite is a matter resting in the sound judicial discretion of the trial court. Ward v. Sweeney, 106 Wis. 44 , 82 N. W. 169 ; Walker v. *6 Backus H. Co. 97 Wis. 160, 72 N. W. 230 ; Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489 , 154 N. W. 998 .

The equities in this case depend upon the conclusiveness of the judgment in the action of unlawful detaiher upon persons claiming under the'defendant in that action. It seems to be 'well established that all parties entering upon land after suit is brought for its recovery are in possession in subordination to the defendant and are equally liable to be removed under the writ against him. This includes the defendant, all members of his family, together with his servants, and tenants at will or sufferance. 3 Freeman, Executions (3d ed.) § 475; note in 15 Am. St. Rep. 59 .

However, persons in possession of the premises prior to the commencement of the action, claiming the right of possession, who are not made parties to the action, their tenants and agents, are not bound by the judgment and cannot be ousted under the writ. Wray-Austin M. Co. v. Flower, 140 Mich. 452 , 103 N. W. 873 ; Clark v. Parkinson, 10 Allen (92 Mass.) 133; note in 15 Am. St. Rep. 61 ; 2 Tiffany, Landl. & T. 1740.

While a judgment in an action of unlawful detainer is binding upon the parties thereto and their privies, privies are those who hold by, through, from, or under a party by some right acquired subsequent to the commencement of the suit. Hart v. Moulton, 104 Wis. 349 , 80 N. W. 599 ; 23 Cyc. 1253.

If the plaintiff is in fact an employee of Magdalena Langen, acting for and on her behalf, and the alleged lease is a mere subterfuge, it would be the .duty of the sheriff to eject the plaintiff from the premises as an employee. If the allegations contained in the complaint are true and the plaintiff is in fact a subtenant of Magdalena Langen, claiming, under a lease executed prior to the commencement of this action, then the defendant Borkowski, plaintiff in the unlawful detainer action, cannot require the sheriff to eject him from the premises. Drum v. Holton, 1 Pin. 456 .

*7 However, upon the undisputed facts appearing by the pleadings in this case Marie LaGrand had a right to terminate the tenancy upon the sale of the premises, and although the plaintiff here was not made a party defendant in the unlawful detainer action it appears that he wrongfully withholds the possession of the premises from Borkowski. As a subtenant or assignee of Magdalena Langen the plaintiff’s rights cannot rise superior to hers. We see no ground upon which one so situated may properly invoke the jurisdiction of a court of equity to restrain the enforcement of a judgment. It comes under no head of equity jurisprudence to which we are cited. It would be a novel proposition indeed if a litigant could successfully invoke the jurisdiction of a court of equity in order to maintain himself in a position which he wrongfully occupies. Certainly it cannot be said that under the circumstances appearing in this case there was any abuse of judicial discretion in refusing to make the temporary injunction permanent and in dissolving the temporary injunction.

By the Court.- — The orders appealed from are affirmed.