#### Parmalee vs. Wheeler, imp.

Stay oe PROCEEDINGS. (1) *In action on judgment. Order not appeal-able.*(3) *Order may bemoated or modified.*— Appeal. *(4) When, security to be given by defendant.*

ASSIGNMENT oe Judgment. (2) *During pendency of action to set it aside.*

1. In an action Upon a judgment it is in the discretion of the court to grant a stay of proceedings until the determination of a suit brought by the judgment defendants, in the court where such judgment was rendered, to have the same set aside; and such an order is not ap-pealable. So *held*where the judgment sued upon and the action to set it aside were in the court of another state.

2. One who takes an assignment of a judgment during the pendency of an action to set it aside, will he hound by the determination of the court in such pending action,though not a party thereto; and when he has sued upon the judgment in another court, he has no greater rights than his assignors would have had in a similar suit.

*4303. The court may in all cases vacate or modify its order staying proceedings, whenever, in the exercise of a sound discretion, it shall deem proper.

4. In a proper case the court may require security to he given by the defendant before staying proceedings on his motion; but the necessity for it not having been shown in this case, there was no abuse of discretion in not requiring it.

APPEAL from tbe County Court of *Milwaukee*County.

Tbe case is stated in tbe opinion. There was a motion by tbe respondent to dismiss the appeal, which was beard at the same time as tbe argument upon tbe merits.

*Finches, Lynde &*Miller, for appellant,

argued that a decree in favor of tbe defendants in their equity suit in the district court of Colorado would not avail them as against Parmalee, the plaintiff in this action, because he was not a party to that suit. *King v. The Chancellor,*1 Strange, 557; *Queen v. Saddler Co.,*10 House of Lords Cases, 404'; *Queen v. Smith,*48 E. C. L., 613; *Bonaher v. Fvans,*71 id., 170; *Ex parte Bamshay,*83 id., 172; *Ex parte Kinning,*56 id., 521; *In re Mockton,*1 Moore’s P. C. Cases, 455 ; *Bowerbank v. Bishop of Jamaica,*2 id., 470; *Smith v. Justice etc.,*3 id., 361; *Gabon v. Dositte,*4 id., 382; *Willis v.*Gipps, 5 id., 379; *Capel v. Child,*2 Or. & Jerv., 559; *Rex v. Gaskin, 8*Term, 209; *Gorham v. Luckett,*6 B. Mon.. 146; *Murray v. Oliver,*3 id., 1; *Greene v. Briggs,*1 Curtis C. C., 325; *Sheldon v. Newton,*3 Ohio St., 498 ; *McClure v. Tennessee,*1 Yerg., 223; *People v. Turner,*1 Cal., 150; *Fletcher v. Daingerfeld,*20 id., 427. 2. The effect of the order appealed from is to stay the collection of the debt due to *Parmalee*until *Wheeler*and Harris can litigate in the equity court of Colorado the question whether Lyon, Pullman & Moore are indebted to them, and in what amount, for the rents and profits of the land; and if they are found indebted, it is claimed that then the judgment shall not be binding for more than the balance so found due Lyon, Pullman & Moore from these defendants. It is exceedingly doubtful whether such an order could have *431been obtained in tbe equity suit, even as against Lyon, Pullman & Moore. See *Rawson v. /Samuel,*18 Eng. Ch. R., 380, where tbe right of “ set-off ” in a court of equity is elaborately discussed; and as to “set-off” to a *judgment,*see 31 Md., 12. 3. If tbe order of tbe county court is not reversed *in tola,*it should at least be modified so as to compel the defendants to give security that tbe judgment finally recovered therein shall be paid, and that *Wheeler*shall diligently prosecute his equity suit.

*Carys & Cottrill,*for respondent,

argued, 1. That the order did not fall within any of the different classes of appealable orders defined by sec. 10, ch. 264, Laws of 1860 (Tay. Stats., 1635, § J1). 2. That the application for a stay was addressed wholly to the discretion of the court. *Vincent v. Wellington,*18 Wis., 159; *Johnston v. Reiley,*24 id., 494; *Prentiss v. Danaher,*20 id., 318; *Wilson v. Jarvis,*19 id., 597; 12 id., 528; *McLeod v. Bertschy,*30 id., 324. 3. That the order might be vacated or modified by the court below on application of the plaintiff showing that the Colorado suit was not being prosecuted with due diligence, or showing any other good reason for removing the stay. *Bacon v. Bichnell,*17 Wis., 523. .4. That the appeal papers show that *Wheeler*has done everything in his power to prosecute the Colorado suit diligently ; and it must be presumed that the court there will proceed with all diligence to dispose of it.

*Finches, Lynde & Miller, contra,*

as to the appealability of the order, cited 12 Wis., 528; 13 id., 85; 14 id., 436; 15 id., 20, 92, 640; 18 id., 404; 19 id., 249; 4 How. Pr. R., 329; 7 id., 78; 14 id., 26; 4 Abb. Pr. R., 193; 6 id., 277; 1 E. D. Smith, 357; 2 Cliff., 311.'

DixON, C. J.

The plaintiff has appealed from an order of the court below, made on motion of the defendant *Wheeler,*staying all proceedings in this action until the action mentioned in the motion papers, and which is pending in the district court *432of the second judicial district of the territory of Colorado, shall have been determined, and until twenty days after a final judg,ment or decree shall have been made or entered in said last mentioned action. One of the objects of the action instituted and pending in the court of the territory of Colorado is, to vacate and set aside, or adjudge and decree satisfaction of, the judgment of that court upon which this suit was commenced. The grounds upon which such relief is sought in that action are, as appears from the motion papers in this case and from a copy of the bill of complaint made a part thereof, that the judgment was wrongfully, unjustly and illegally obtained, without service of process upon the defendants and without appearance on their part, and upon a demand which was actually paid and satisfied at the time. The judgment so alleged to have been obtained, and against which such relief is sought, and upon which this action is instituted, was in favor of Lyon, Pullman and Moore, plaintiffs, and against *Wheeler*and *Harris,*the defendants in this action, defendants. The plaintiff sues in the county court of Milwaukee county upon that judgment, as assignee of Lyon, Pullman and Moore, in whose favor the same was rendered. The plaintiff purchased the judgment of Lyon, Pullman and Moore and one Towne, and received his assignment front them *pendente*lite, that is, after the institution and during the pendency of the action in the territory of Colorado to vacate and set the same judgment aside, or to declare and adjudge it to have been fully paid and satisfied. That action was instituted by the present defendants, *Wheeler*and *Harris,*against Lyon, Pullman and Moore, the plaintiffs in the judgment, and against said Towne, who was alleged in the bill to have acquired some interest by purchase in the judgment and in the real estate, situate in Colorado, also in controversy in the action.

The plaintiff in this action is not a party to that one, but the motion papers tend very clearly to show that at the time of purchase he had actual knowledge of the pendency of it, and *433of tbe facts asserted and relied on by tbe defendants to vacate and avoid tbe judgment Tbe motion papers also tend to sbow that tbe defendants in tbis action, tbe plaintiffs in that, bave been and are prosecuting tbe same with all reasonable diligence and dispatch to a final bearing and judgment

In view of the foregoing facts, the question arises whether tbe order is appealable. Council for tbe plaintiff, expressly conceding that tbe case of *Johnston v. Reiley,*24 Wis., 494, was correctly decided, as we bave no doubt it was, still claim to distinguish tbis case from it They say that tbe former action there pending, and for and until tbe determination of which tbe proceedings in tbe subsequent action were stayed, was an action between tbe *same parties.*They say also that here tbe parties to tbe two actions are not the same.

The fact is so, but bow does it vary or affect the application of tbe principle or rule of practice? We think clearly not at all. The plaintiff, as purchaser of tbe judgment *pendente lite,*stands to all intents and purposes in tbe shoes of bis assignors, who are parties to tbe first action. Any determination of that action or decree in it, vacating or annulling tbe judgment sued upon or adjudging satisfaction of it, will as effectually bind and preclude tbe plaintiff as if be were a party to the action. It will bind him tbe same as bis assignors, who are such parties. It would be something very strange and anomalous if be could step in and buy, and take tbe judgment out of tbe litigation, and acquire the right to sue upon and prosecute it the same as if no such action was pending or bad been commenced. He cannot do so, but is bound and must abide by tbe results of tbe litigation in all respects as if be were a party to tbe action. He may be let in and become such party in fact, perhaps, on bis own application, but tbe plaintiffs in tbe action are not required to amend their bill or to bring him in.

Tbis case, though differing, therefore, slightly in its facts from *Johnston v.*Reiley, is not distinguishable in principle, or tbe practice which should be adopted.

*434The practice of ashing for and obtaining a stay of proceedings in a case like this is not only recognized by the case above referred to, but also by *Wilson v.*Jarvis, 19 Wis., 597, and *Prentiss v. Danaher,*20 Wis., 818. The order staying proceedings is, of course, in all cases subject to modification or vacation by the court making it, whenever in the exercise of a sound discretion the same shall be deemed necessary or proper.

It is suggested that the order here should not have been granted without requiring- security to be given by the defendant. In a proper case no doubt security maybe required; but the necessity for it is not shown in this case, and it was no abuse of discretion not to require it.

*By the*Court,— Appeal dismissed.