
    Hills and others vs. Laporte.
    
      Judgment in Ejectment: Betterment Act.
    
    In ejectment, where, after a finding of the facts in plaintiff’s favor, the defendant has filed his claim for improvements under the statute, and the court has ordered an issue to he made up for the trial of such claim, it is error to enter judgment for the ejectment plaintiff before trial of such issue. 36 Wis., 328,- 38 id., 636 : 39 id,, 600.
    
      APPEAL from tbe Circuit Court for Brown County.
    Ejectment. Tbe trial was by tbe court without a jury, and resulted in a finding for tbe plaintiffs. Various excej>-tions were taken by tbe defendant to findings and concl u-sions of tbe court. Other facts material to tbe decision will appear from tbe opinion. Tbe defendants appealed from a judgment on tbe finding.
    The brief filed for the appellant is signed by Hastings & Greene, and that for the respondents by Hudd & Wigman; and the cause was argued orally by S. D. Hastings, Jr., for the appellant, and by T. R. Hudd for the respondents.
    For tbe appellant it was contended, that tbe court erred in entering judgment for tbe plaintiffs before tbe issue on tbe claim for improvements was disposed of. Scott v. Reese, 38 Wis., 636. Counsel also discussed at length various questions raised by tbe exceptions taken to tbe finding of facts and conclusions of law.
    For tbe respondents it was argued, among other things, that tbe entry of judgment before trial of tbe issue for improvements was a mere irregularity, not prejudicial to appellant, and affording no ground for a reversal of tbe judgment (sec. 40, cb. 125, R. S.; 1 Pin., 494; 21 Wis., 395; 24 id., 610); that a motion to set aside the judgment was tbe proper practice in such a case (22 Wis., 128); and that tbe appeal from tbe judgment was a waiver of tbe irregularity (24 Wis., 340). But if this court should take a different view of these questions, counsel urged that it should still decide tbe other questions presented by tbe record, and thus prevent an appeal from tbe judgment that might be entered after trial of tbe issue as to improvements.
   Cole, J.

According to tbe record, after tbe finding of tbe court in favor of tbe plaintiffs, but before tbe entry of judgment, tbe defendant made and filed bis claim for improvements under tbe statute. Thereupon tbe court ordered an issue to be' made up for tlie trial of such, claim. Afterwards the usual judgment in ejectment was rendered in favor of the plaintiffs, before the claim for improvements was disposed of. This was error.

The proper practice was settled, upon full consideration of the provisions of the statute, in Thomas v. Rewey, 36 Wis., 328, and Scott v. Reese, 38 id., 636. The ruling in these cases was sanctioned and followed in The Phœnix Lead Mining and Smelting Co. v. Sydnor, 39 Wis., 600. In Scott v. Reese the chief justice thus clearly states the practice contemplated by the statute: “ The claim and the issue upon it must not only be made, but the issue must be tried, before any judgment should be rendered in the ejectment.” A bare reference to those decisions is all we deem it necessary to say in pointing out the error in the present judgment. The counsel for the plaintiffs argued that the entry of judgment before the claim for improvements was disposed of, was a mere irregularity, not affecting the merits, and ought to be disregarded. Ve cannot adopt this view without overruling the decisions above referred to, which we are not disposed to do.

The judgment of the circuit court must be reversed, and the cause must be remanded with directions to proceed and try the issue on the claim for improvements.

By the Gowrt. — It is so ordered.  