#### The Farmers’ Loan and Trust Company vs. The Walworth County Bank.

*Bguity*— Interference *with judgment*— Surprise.

The fact, that a party to a suit at law (or Ms counsel) was surprised at the ruling of the appellate court (holding that the reference of the cause to the judge of the court operated as a submission to arbitration, and refusing to review his decision), affords no ground for equitable interference with the judgment.

*250APPEAL from tbe Circuit Court for *Hacine-*County.

In 1859, tbe *Walworth County Bank*brought an action in said circuit court, to recover tbe value of certain railroad ties alleged to belong to it, and to bave been taken from its possession and converted by tbe Farmers’ *Loan & Trust Oompany.*Judgment was rendered for tbe plaintiff, which, on appeal, was reversed by this court, and a new trial ordered. 14 Wis. 325-31. Upon tbe second trial, the plaintiff again obtained a judgment for tbe value of tbe ties; and this judgment was also reversed on appeal, and a new trial again ordered. 16 Wis. 629-33. Tbe cause was then, by stipulation of tbe parties, referred to tbe judge of said circuit court for trial, with an agreement, that, upon tbe filing of bis report, judgment might be entered, “ with tbe same force and effect as upon tbe verdict of a jury.” Pursuant to this stipulation, judgment was rendered for tbe plaintiff* on tbe referee’s report; and on appeal, this court held that such judgment was not subject to review by it. 22 Wis. 231-33. Tbe present action was then brought to restrain tbe execution of said judgment; and tbe grounds alleged for tbe relief will sufficiently appear from tbe affidavit for a rehearing, made in this court after tbe decision upon tbe former appeal (see 22 Wis. pp. 232, 233), and from tbe opinion, *infra.*After an answer bad been filed, the defendant moved to dissolve a temporary injunction which bad been granted on tbe filing of tbe complaint ; and it appealed from an order denying tbe motion.

*John W. & A. L.*Gary, for tbe appellant.

*Fuller da*Dyer, for tbe respondent.

PaiNE, J.

This is clearly an attempt in equity to litigate over again tbe controversy involved in a former suit at law between tbe same parties, and to get rid of tbe judgment which tbe appellant obtained in that suit. There is no substantial ground for equitable relief set forth, unless it is found in tbe allegation of surprise at tbe ruling of this court — that tbe refer*251ence of tbe case at law to tbe circuit judge was, in effect, *a*submission to arbitration, and that tbe decision of tbe arbitrator would not be reviewed. This was a mistake of law, and is not of sucb a character as affords ground for equity to interfere with a judgment in a suit at law in wbicb tbe parties bad an opportunity to litigate tbe entire merits of tbeir controversy. See *Danaher v. Prentiss,*22 Wis. 311; *Railroad Co. v. Shippen,*2 Pat. & Heath (Va.) 327.

There is nothing to show that tbe plaintiff might not, or even;that it did not, avail itself in the suit at law of all tbe grounds of defense upon wbicb it now seeks to avoid the judgment. It does not even appear that tbe mistake, sucb as it was, prevented this. Its only effect was to prevent a review on appeal. And it would be an extraordinary interposition on tbe part of a court of equity to set aside a judgment obtained, for aught that appears to tbe contrary, after a full and fair litigation upon tbe merits before tbe circuit judge, merely upon tbe ground that tbe counsel bad, by a mistake of law, cut off tbe right of review.

Tbe motion to dissolve tbe injunction ought to have prevailed, and tbe order refusing it must be reversed, with costs, and tbe cause remanded for further, proceedings.

*By the Court.*— Ordered accordingly.