pleaded in this action, and that the court has no jurisdiction to try and determine the question of the legal title to lands attempted to be raised by said counterclaim. Overruled and exception. Plaintiffs then moved the court for leave to discontinue the action, including the defendant's counter-claim, with costs in favor of the defendant. This was also denied, and plaintiffs excepted. The plaintiffs then declined to prosecute their action further. A trial was afterwards had upon the defendant's counter-claim, and a judgment rendered establishing the defendant's title to the lands described in defendant's counter-claim, and barring the plaintiffs, and all persons claiming under them or either of them, of any right, title, or interest in said lands, or any part thereof, and giving the defendant a judgment for the costs of the action. From this judgment the plaintiffs appeal to this court. Simpson, 29 Wis. 333: Pier v. Fond du Lac, 38 Wis. 470. These admitted facts constitute a good cause of action under said section 3186, Rev. St., in favor of the defendant against the plaintiffs. It is urged by the plaintiffs that the defendant has an adequate remedy at law to maintain his right to said land. In this, we think, the learned counsel for the plaintiffs is clearly mistaken. In considering this counter-claim, the demurrer admits that the defendant has the actual possession of the land in dispute. In such case the plaintiff cannot maintain an action at law against a person claiming possession of or title to such land. His actual possession stands in the way of maintaining ejectment, or any other possessory action, against any person not in possession, and not committing an actual trespass on said land. See Carmichael v. Argard, 52 Wis. 607, 9 N. W. Rep. 470. His remedy to silence the pretensions of others making claim to the land is under the common law. Both these actions are eq uitable in their nature; and the court, Upon the hearing of this appeal the learned counsel for the appellants make the same objections to the defendant's counter-statute, or by an action quia timet at claim that were made in the court below, and insist that the demurrer to such counter-claim should have been sustained-in case the title of the plaintiff is disputed First, on the ground that it does not state facts sufficient to constitute a cause of action; and, second, that the facts set out therein are not pleadable as a counterclaim in said action. All the other objections made in the court below and in this court must be of no avail to the plaintiffs, if the counter-claim states a cause of action in favor of the defendant and against the plaintiffs, and if the facts stated therein are pleadable as a counter-claim to plaintiffs' action. by the party not in possession, must try the question of title either with or without a jury, as the court shall determine. If the party out of possession desires a jury trial as to his title, he may commence an action of ejectment to try such title, and, having commenced such action, he might apply to the court of equity having jurisdiction of the equitable action to stay proceedings in such action until the issue was tried in the action at law; and the court of equity might, in its discretion, stay the proceedings in equity. It would probably not be imperative on the court to do so, even in such case. The only other objection made to the In determining the sufficiency of the counter-claim, we must be confined to the facts stated in the counter-claim itself; and the admissions made in the answer of the defendant not included in such counter-counter-claim is that it was not pleadaclaim cannot be resorted to by the plaintiffs to test the sufficiency of such counterclaim. The counter-claim is, in substance, an action by the defendant against the plaintiffs; and its sufficiency must be determined upon demurrer, the same as it would have been had the defendant been the plaintiff in the action, and the facts stated in the counter-claim were set out in his complaint. Considering the facts stated in the counter-claim as a cause of action by the defendant against the plaintiffs, we must hold that such facts constitute a good cause of action against the plaintiffs in favor of the defendant. The facts stated very certainly state a good cause of action under our statute, (section 3186, Rev. St.,) to quiet the defendant's title to the real etate in question. The demurrer to the counter-claim admits all the material allegations of fact in the pleading. So in this case the actual posBession of the defendant for a long series of years of the lands in dispute is admitted. It is also admitted that the defendant is the owner in fee of said lands, and the commencement of this action by the plaintiffs shows the setting up of a claim to said lands. See Clark v. Drake, 3 Pin. 228; Maxon v. Ayers, 28 Wis. 612; Manaing v. Heady, 64 Wis. 630, 25 N. W. Rep. 1; Wals v. Grosvenor, 31 Wis. 681; Lee v. ble in this action. An examination of the lief the plaintiffs intended to ask in said action, but, as such relief, upon a proper showing, might have been obtained by the plaintiffs by an application in one or all the suits commenced by defendant against O'Deal, and without instituting this action, the defendant had the right to suppose they would claim, under their prayer for general relief, such relief as they were entitled to upon the facts stated in their complaint and established upon the trial. He had the right, therefore, to answer so as to defeat any such claim for relief, either by a denial of the facts stated in the complaint, or by a counter-claim asking affirmative relief against the plaintiffs which, if granted, would clearly defeat their claim for any kind of relief against the defendant. But, admitting that the complaint of the plaintiffs would not have authorized the trial court to have granted them any other relief than that contained in the special prayer for relief, still we are of the opinion that the defendant had the right to put in issue by his answer both the possession and title of the plaintiffs, they having asserted that they had such possession and title in their complaint; and, having the right to put such possession and title in issue, he had also the right to claim such possession and title to be in himself, and to ask such affirmative relief, by way of counter-claim, upon the establishment of such right in himself, as the law authorizes. The plaintiffs having brought the defendant into a court of equity, and called upon that court to give them relief because they were the owners in fee, and in actual possession, of certain lands to which the defendant laid claim, he was clearly authorized to come into the same court, and defeat their right to relief by showing they had no title and no possession, and, having shown that such possession and title were in himself, obtain such affirmative relief as such title and possession would give him as against the plaintiffs. The learned counsel for the plaintiffs admit that, if the plaintiffs had claimed relief under section 3186, Rev. St., it would have been competent for the defendant, by way of a counter-claim, to ask the same relief on his part. The fact that the plaintiffs did not claim the relief to which they would have been entitled upon the facts stated in their complaint does not limit the defendant in his claim. The plaintiffs, by their complaint, make it necessary for the defendant, in order to defeat their action, to litigate with them all the facts they would have been compelled to litigate had the plaintiffs claimed the larger relief. There would seem, therefore, to be no good reason for holding that the defendant should not be entitled to the same relief in this case that he would have been entitled to in the other. The subject of the action of the plaintiffs in this case, as stated in their complaint, is their title and right of possession to the land in question; and the defendant's counter-claim sets up the same subject of the action, viz., the title and possession to the same land. We think there can be no reasonable doubt as to the right of the defendant to set up the facts stated in his answer as a counter-claim in this action, under subdivision 1, § 2656, Rev. St.; Mulberger v. Koenig, 62 Wis. 558, 22 N. W. Rep. 745; Cornelius v. Kessel, 58 Wis. 237, 16 N. W. Rep. 550; Jarvis v. Peck, 19 Wis. 74. Treating the counter-claim as a sufficient cause of action in favor of the defendant against the plaintiffs, and as properly pleadable in this action, the court was right in overruling the motions of the plaintiffs for judgment upon the pleadings, as well as the motion to dismiss the action, including the counter-claim. There can be no doubt as to the plaintiffs' right to dismiss his own action, but this court has held that, when the defendant has properly pleaded a counter-claim against the plaintiff, the plaintiff cannot, by dismissing his action, prevent the defendant from insisting upon a trial of his counterclaim. Bertschy v. McLeod, 32 Wis. 205; Hutchinson v. Paige, 67 Wis. 206, 29 N. W. Rep. 908; McLeod v. Bertschy, 33 Wis. 176. We find no error in the record. The judg ment of the circuit court is affirmed. (76 Wis. 335) RAYMOND V. CITY OF SHEBOYGAN. (Supreme Court of Wisconsin. March 18, 1890.) DEFECTIVE STREETS-NEGLIGENCE OF THIRD PERSON. as 1. The charter of the city of Sheboygan (Laws Wis. 1874, c. 236) provides that, where a personal in injury has happened through a defect in a street caused by the negligence of a third person, the city shall not be liable until all remedies against the negligent person have been exhausted. A subvides that, where an injury "has happened sequent general act (Laws Wis. 1889, c. 471) proabove described, the negligent person shall be primarily liable, but the city may be joined as defendant with him, and judgment shall be entered against all parties found liable; but further action against the city shall be stayed until an execution against the negligent person has been returned wholly or partially unsatisfied. Held, the general statute, though retroactive, affects a remedy only, and therefore applies to an injury for which suit was pending when it was enacted. 2. Such general statute was manifestly designed to remedy the evils of delay and multiplicity of suits produced by this and other like charters, and is not controlled by Rev. St. Wis. §§ 4986, 4987, which provide that general statutes shall not be construed to amend or repeal acts relating to particular municipalities unless specially mentioned. 3. Since the enactment of this general statute, the city is not merely a guarantor of the collectibility of the judgment against the negligent person, and therefore is not released from liability by delay in prosecuting the claim. Appeal from circuit court, Calumet county. This action was originally commenced June 28, 1887, against the defendants Dorothea and Joseph Keyesburg for personal injury sustained by the plaintiff while traveling upon one of the streets in the defendant city, in the evening of May 18, 1885, by reason of an alleged defect therein caused by the said Keyesburgs. The complaint contained the usual allegations in such cases. April 16, 1888, the venue was changed to Calumet county. August 31, 1888, the time for transmitting the records to Calumet county was extended by a court commissioner. September 25, 1888, the defendants Keyesburg moved to vacate said order, and the same was denied, and the time for transmitting the record was thereupon extended to October 24, 1888. July 20, 1889, the plaintiff amended the summons and complaint by making the city a defendant, and by alleging the ordinary facts essential to make the city liable. To that amended complaint the city separately demurred on the grounds that several causes of action were improperly united, and that the complaint did not state facts sufficient to constitute a cause of action against the defendant city. Upon the hearing of the demurrer, the same was overruled, with the usual leave to answer on terms. From that order the defendant city bring this appeal. Carl Runge, (A. C. Prescott, of counsel,) for appellant. G. W. Foster, (Charles W. Felker, of counsel,) for respondent. CARRODAY, J., (after stating the facts as above.) The charter of the defendant city, at the time this action was originally commenced, provided, in effect, that whenever any person was injured by reason of any defect in the street for which the city would be liable, and such defect was caused by the negligence of another person, the city should not be liable therefor until all legal remedies had been exhausted against the person through whose negligence the defect was caused. Section 24, c. 236, Laws 1874; Raymond v. City of Sheboygan, 70 Wis. 318, 35 N. W. Rep. 540. Accordingly, it was held in that case that the plaintiff could not proceed against the city until all his legal remedies had been exhausted against the lot-owner causing such defect, even though the city was also negligent for not removing the obstruction. Chapter 471, Laws 1889, provides, in effect, that "whenever any injury has happened or shall happen to any person or property in any city by reason of any defect in any street, and such defect shall be caused by, arise from, or be produced by the wrong, default, or negligence of any person, such person ⚫ • so guilty of such wrong, default, or negligence shall be primarily liable for all damages arising from such injury; but such city may be sued in the same action with the one 80 primarily liable, and be complained against as if primarily liable." But, if it is made to appear upon the trial of such action, by the verdict or finding, that such city is liable, but not primarily liable, then the court shall enter judgment against all the defendants found liable for the amount; "but the court shall stay execution against such city until exeuntil exe cution against those found to be primarily liable, shall have been returned unsatisfied in whole or in part," and then the party injured may proceed against the city for any unpaid balance. The act also provides, in effect, that, if any action be brought against any person, without making such city a party, "the plaintiff may amend in like manner, by making such city ing actions. It manifestly was intended to apply to any injuries which had happened prior to the passage of the act, and as to which the rights of the parties had not been determined. The words, "whenever any injury has happened or shall happen," manifestly apply to such prior as well as subsequent injuries. The mere fact that an action for such injuries was pending at the time of the passage of the act in no way prevented its application to the same. The act must be regarded as retroactive in its effect. As it merely relates to the remedy, its validity cannot be doubted upon that ground. The mere fact that the act does not, in terms, amend the charter of the defendant city, does not prevent its application to the same. It is to be remembered that such right of action against any town, city, or village was given by general statute. Section 1339, Rev. St. The charter of this and other cities extended the right against persons who may have caused the defect, and required that the remedy should be exhausted as against them before proceeding against the city. Such charter provisions were open to the objections of multiplying suits and expenses, and furnished an opportunity for defeating meritorious claims for injuries sustained by reason of unavoidable delays, or delays purposely obtained to secure such defeat. Manifestly, to obviate such objections, the act in question was passed. There is nothing militating against this theory in the rules for construing the Revised Statutes, as prescribed by sections 4986, 4987, cited by counsel.1 We must hold that the act cited is applicable to the case at bar. The most serious question presented is whether the plaintiff has not lost his remedy against the city by reason of his laches. In McFarlane v. City of Milwaukee, 51 Wis. 695, 8 N. W. Rep. 728, it was held, under a charter provision substantially like section 24 of the charter of the defendant city, above cited, that the same "made the city liable only as a guarantor of the collectibility of the damages from the wrong-doer," and that the fact that the city might ultimately be held liable by reason of its own negligence was immaterial, and that "the same rule which applies to the guarantor of the collectibility of a debt should apply to the city." In that case the action was not commenced until more than five years after the injury, and the complaint was held bad as against the city on demurrer. See Papworth v. City of Milwaukee, 64 Wis. 397, 398, 25 N. W. Rep. 431; Raymond v. City of Sheboygan, 70 Wis. 321, 35 N. W. Rep. 540. The case at bar was commenced within two years after the injury, and, we think, is clearly distinguishable from the cases just cited. But there is another reason why this demurrer should not be sustained. Chapter 471, Laws 1889, has changed the remedy so that, in proceeding against the city, it can no longer be regarded as a mere guar • a party." It is strenuously claimed that this chapter does not Rev. St. Wis. $$ 4986, 4987, provide that the apply to the case at bar, for the reason provisions of a city or village charter shall prevail over a general statute, in case of a variance; that it does not amend or repeal the pro- and that the latter shall not be construed to amend vision of the city charter above referred or repeal special acts relating to particular munic to, and because it does not apply to pend-ipalities unless it enumerates then. antor of the collectibility of any damages | that may be recovered against the principal wrong-doer. By that act the injured party is no longer obliged to exhaust his remedy against the principal wrong-doer before proceeding against the city; but he may proceed against such wrong-doer and the city together, and recover judgment against both at the same time. The only difference remaining between such wrongdoer and the city is that execution on such udgment against the city must be stayed until an execution against such wrongdoer has been returned unsatisfied in whole or in part. The order of the circuit court is affirmed. (76 Wis. 298) HIGGINS V. MINAGHAM. (Supreme Court of Wisconsin. March 18, 1890.) ASSAULT-JUSTIFICATION-EVIDENCE. Defendant, in an action for damages for a gunshot wound inflicted by him on plaintiff's son, admitted the shooting, but the evidence as to • justification was conflicting. Defendant testified that several armed persons came to his house late at night on three different occasions, and fired their guns at his gate-post, sang obscene songs, and applied vile epithets to him in the hearing of his wife and five daughters; that his wife became pale and trembled with fear, and his little girl cried in a frenzy of excitement; that they threw a missile against his house; that he fired first to frighten them away, and that the second shot, which took effect, was fired at the crowd, but not until he was satisfied they intended to shoot him, as they were loading their guns. Plaintiff's son was in the crowd, armed with a revolver. Held, that the refusal to leave the question of justification to the jury was error. struction, and also asked the court to give several instructions as to what facts would warrant the jury in finding that the defendant was justified in doing the act charged, which were refused. We think that, under the peculiar circumstances of this case, the court erred in taking away from the jury the question of justification, and for this error the judg ment should be reversed, and a new trial ordered. It was the only controverted question in the case, and the only defense the defendant had. The shooting and injury were not denied. The only question left to the jury was as to the amount of the plaintiff's damages for the consequent loss of his son's services. A jury trial might as well have been denied to the defendant, for the loss of services was a mere matter of computation from the testimony. Such a case should be certain beyond all question, and the facts undisputed, to warrant the court in taking it away from the jury. The facts were not undisputed, and the testimony was conflicting and contradictory as to many material facts. The version of what occurred at the time, and of his own conduct, given by the defendant and his witnesses, is materially different from that given by the plaintiff's witnesses. The defendant was entitled to the verdict of a jury upon his conduct under the provoking and distressing circumstances of such a great wrong and outrage. As said by the court in Patten v. People, 18 Mich. 333, a case of riot by a charivaring party, where the outrage was at least no greater, and life was taken: "Of the weight a jury should give to these Appeal from circuit court, Fond du Lac considerations, no safer standard can be county. Maurice McKenna, for appellant. Duffy & McCrary and Charles E. Shepard, for respondent. ORTON, J. This action is brought by the plaintiff to recover damages for the loss of service of his son John Higgins, about 19 years of age, and for expenses of medical attendance upon him, occasioned by the wounding of said John, in one of his legs, by a ball shot from a gun held and discharged intentionally and maliciously, by the said defendant, on the night of the 25th day of June, 1887. The plaintiff obtained a verdict of $300. The defendant made a motion to set aside the verdict, and for a new trial, on the minutes of the court, which was denied. At the close of the arguments of counsel, the court said, in the presence of the jury: "I am inclined to think, from the testimony in the case given on both sides, that it is the duty of the court, as a matter of law, to charge the jury that no justification has been shown by the defendant, if he perpetrated it, so that the only question for the jury will be, " etc. As a part of the instructions to the jury, the court said: "The court has ruled that from the facts in this case, if you find that this shot which inflicted this injury was fired by the defendant, he was not justified in doing that act, under the facts and circumstances disclosed by the testimony." The counsel of the defendant duly excepted to said statement and in given than their own individual conscious- go away, and he fired off towards them the other barrel. Right immediately after he fired that shot he heard a shot fired across the road a little east of where he stood. He did not shoot until he was satisfied that they intended to shoot at him. They were loading up for that purpose. It was evident that they were not going to leave, but to give him battle. They had hurled a missile against the house, and it struck the jamb of the window. It was dark. He could see them only by the flash of their guus. They were 175 feet away when he shot. He did not know who they were, but supposed they were actuated by malice. John Higgins, the son of the plaintiff, who was shot in the leg, was one of the crowd, and armed with a revolver. They had at least six guns with them. They appeared to be the same crowd each night. This is a correct abstract of the defendant's testimony. In view of this evidence, if the case had been fully submitted to the jury, and they had found that the defendant was justified. in shooting as he did, would the court have been warranted in setting that verdiet aside for not being supported by the evidence? That is the real question. For if the court would not have been warranted in doing so, then that question should not have been decided by the court, but submitted to the jury. If different persons might reasonably draw different inferences from this evidence, as to whether the defendant was justifiable, then it was a question for the jury, and not for the court. On this evidence, we think the jury might well have found that the defendant was justified in doing as he did. This may have been called a “charivari," but it was to all intents and purposes a riot, participated in by a very large number of desperate and evil-minded persons armed with guns. It was persistent in molesting the defendant's home and family, night after at his door. He asked who was there. A voice responded, saying: "The boys are out here, and they want $15." He said he would give them nothing, and they had better go out of here. He went out, and the person had gone. He heard a crowd coming, drumming on saws. As they passed his gate, he told them to pass on quietly, and make no disturbance. They stopped near his big gate, in front of his barn, and one of them said, in a loud voice: "Let's not be driven off. Let us go back and give him hell." Then they commenced shooting with guns, “hollering, drumming on sap pans, singing, and making all the noise possible. They fired off their guns at the same time. They sang: "My wife she died. I married another, the devil's grandmother;" and sang obscene songs. They called him " a son of a bitch" several times, and, after he retreated into the house, they called him that, and to "Come out here." When it got to be between 12 and 1 o'clock in the night they said: "Let us load up with ball and shot, and shoot the damned son of a bitch." Then, as they were going away, they said: "They would have $20 the next night, and they would keep this up all summer. This was after 1 o'clock. The next morning he found his hitching post taken up, and placed inside of his fence, and the posthole full of stones, and the sticks used to pound on his fence and gate. On the night of the 22d they came again, with accessions to their number, and there were 30 or 40 of them. They repeated the same noises, and fired gun-wads into the gate, and the gate was black with powder, and an obscene cut or picture was made on the gate-post, and they had cut off a long piece of a rope which was in his corn-crib, and left it on the fence. They were shooting and "hollering" that night, like so many devils, firing off their guns, pounding on the fence, calling him to come out, with the same vulgar expressions, and this continued un-night, and late at night, with increasing til 12 o'clock. The defendant did not go out that night. On Saturday night, the 25th, they came there again, about 10 o'clock. The defendant and his family had gone to bed. They heard their shouts and guns fired off. There was no one in the house but the defendant and his wife and children. He did not get up for a while, or until his wife became agitated by intense fear, and was much frightened. She trembled in bed, and her limbs quivered. She jumped up, and said that he must drive those rascals away, or that she would be unable to get up in the morning. His little girl, seven years of age, was crying in a frenzy of excitement. She was so affected by fear and excitement that she looked very pale, and would wake up and scream for several weeks afterwards. This was the situation of things when he got up and went out of the house, and went and borrowed of a neighbor a double-barreled gun, and the neighbor loaded one barrel with shot and one with a ball for him, and when he came back with the gun the rioters were still singing, "hollering," and shooting. He wanted to frighten them away, and he discharged the shot first towards where he supposed they were, and then waited a while. They did not disturbance and threats of shooting and personal violence, interspersed with obscenity and ribald songs, in the hearing of the defendant's wife and his five young daughters. They may not have, yet, committed any personal violence upon the defendant or his family. But the effect of fear and fright might have been as serious and as harmful. The defendant might have reasonably apprehended that, at any moment, they would resort to personal violence, perhaps of the most shocking character. Who can fix limits to the conduct, excesses, and depredations of such a riotous crowd of bad men? How long should the defendant bear, without resistance, the repetitions of this riot, night after night? What shall he do? He is alone, and unable to cope with such a desperate and armed body of rioters. When may he arm himself and defend his family and his property from such continued outrages and assault? They had threatened to shoot him. Who can say that his life was not in danger? As a father, he was charged with the protection of that which was dearer than life. What devilish insane idea might strike such a lawless horde of miscreants no one could tell. Such a riot is pregnant with manifold dangers. |