Babcock v. Perry

| Wis. | Jun 15, 1856

By the Court,

Smith, J.

It is not necessary to recapitulate here the facts of this case. The petition prays that the order of the court below, taking the bill as confessed, at the October term, A. D. 1852, and that all subsequent- proceedings had in the case, may be set aside, and that he may be let in to answer; and the reason assigned therefor, is the negligence of his solicitor to appear in the canse and defend the same.

Negligence of solicitor is good ground on which to base an application to set aside a default. When this fact is clearly established, the court may, in its discretion, grant the relief so prayed for. But it is not imperative upon the court to set aside a default for this cause alone. It must further appear that the party has a good defence >to the suit, and that he himself has not been, guilty of laches. Indeed, all the circumstances of the case must be such as to induce the favorable consideration of the court. 1 Barb. Ch. Pr. 368 et seq.; Baxter vs. Lansing, 7 Paige, 352; 1 John. Ch. R. 414; 2 Barb. Ch. R. 115, 395 ; 3 Paige, 206 ; 5 id. 164; 8 id. 176; Rogun vs. Walker, 1 Wis. 643.

If the party has been guilty of negligence or laches himself, the negligence of his solicitor will not avail to sustain the'petition. The bill in this case was filed August 21,1852. The petitioner was made party defendant, and was personally served with process. The. usual order to answer was taken, and no appearance for either of the defendants having been entered, in due time the order taking the bill as confessed was entered, and at the October term, 1852, a final decree of foreclosure was made; and upon proof taken in open court, that the mortgaged premises could not be sold in parcels without prejudice to the interests of the parties, the whole was ordered to be sold together. The sale was made the 12th day of February, 1853, the complainant becoming the purchaser, and at the May term, 1853, application was made to the court for confirmation. At the same May term, 1853, Perry filed his petition fo.r a rehearing, in'which, among other things, as an excuse for not appearing to defend the suit., he says that “ he neglected to appear and defend his rights, because he did not wish to incur the costs and expenses of said defence, inasmuch as the complainant had agreed with Taylor to release his part of the premises from his mortgage, and more especially because he did not believe that any one could be found who would swear that said premises could not be sold in parcels, as well as together, and supposed that the premises would be sold in the inverse order of alienation, and in that case he intended to bid the amount of the two mortgages for that part of said premises not conveyed to him.”

We do not suppose that any one will insist that this is a valid excuse for such neglect of the petitioner. All the while from the commencement of the suit in August, 1852, until the day of sale under the final decree, the defendant contemplated no other measures for the protection of his rights, than such as he could render available to him at the sale of the mortgaged premises. If h¿ had desired only to secure a separation of the mortgaged premises at the sale thereof, it must have occurred to him or to his advisers, if he had any, that the time for doing so was at the making of the order of sale, and not at the time of the execution of such order. He had notice, as appears by his own petition, of the time of sale; he took divers and sundry steps in relation to the execution of the order of sale; but during all this time he’ did not appear before the court below to have his rights proved and adjudicated, and all for the reason that he “ did not wish to incur the expense of a defence.”

Should it be admitted ás a legal excuse, that the party did not wish to incur the expense of appearing and defending his rights in a suit in equity, to which he is made a party, there would be no end to applications for a rehearing on the part of those who may have chanced to misj udge as to their policy or duty in the given case. Should the rule of practice suggested by the petition prevail, any defendant might lie by and wait a final decree of the court, because he could not suppose that it would be adverse to him or prejudice his rights; and if, in the end, his expectations should chance to be disappointed, he could readily obviate all the risk of his experiment, by simply setting forth the fact that the court had not done as he expected, and, therefore, is bound to grant him a rehearing. It is the duty of a party, when informed by the process of the court of proceedings in which he may be interested, or may be commanded to appear and answer the premises, to render a prompt obedience; and if he fail to do so, he must abide the consequences, unless he can render a better excuse than that the decision of the court, or the evidence of the party or witnesses, were different from what he expected it would be, or that he did not wish to incur the expense of defending his rights. Yet the first petition for a rehearing is substantialty neither more nor less. The facts set up in the petition are matters of defence, if indeed they amount to a defence, which were all within the knowledge of the petitioner at the time of the service of process, and we cannot perceive how they could be made more or less available .to him, whether the premises were decreed to be sold together or in parcels. If they were sold for the full value, his rights could be protected upon the distribution of the proceeds, and he had notice of the sale, and could attend, as it appears he did, and bid if he chose, to their full value. Or, if from any undue cause the premises were sold for less than their value, a resale might have been ordered. The excuse for not appearing is totally inapplicable to the nature of th,e defence sought to be interposed.

This petition not meeting with the favor of the court, at the October term, 1854, the defendant Perry filed another petition, praying that the default might be opened, and all subsequent proceedings set aside, and that he might be let in to answer, at the same time tendering an answer. This last petition is substantially like the first, except that there is an attempt in the last to charge the omission to appear and defend to the negligence of a solicitor, instead of the laches of the party, as in the first. Both of the petitions are supported by the affidavits of H. S. Wi.nsor, Esq. The first proves the truth of the allegation in the first petition, that the petitioner declined to appear and defend on account of the expense, and the second attempts to sustain the last petition by assuming negligence on his part as solicitor for the petitioner. These two petitions, and their accompanying affidavits, are utterly irreconcilable, though the last falls far short of establishing the fact of such a timely and effectual retainer and employment as to justify the opening of the decree pro confesso, and the subsequent proceedings, on the ground of the negligence 'of the solicitor. We are not 'disposed to comment upon these discrepancies, but we cannot shut our eyes tó the position of the case in which these several papers place and leave it.

Nor can we fail to observe the discrepancy between the allegations contained in the last petition and the affidavit of' Mr. Winsor made at the October term, 1854, and in the affidavit of Mr. Winsor made after the argument in relation to the order of the court denying the first petition.' It would seem that the presumption should be stronger in favor of the correctness of the first affidavit, and it is also corroborated by tbe statement of tbe petitioner himself.

When a solicitor shall have been regularly employed, or, in other words, retained, so as to fix his responsibilities to his client and to the court, shall have prepared and filed an answer, taken proofs, &c., but neglects to attend at the hearing, without the connivance or fault of the client, it is but reasonable and just that the court should interpose in behalf of the client so betrayed, and relieve him from the consequences of such infidelity. But where a party fails to take any steps to prepare his case, employs, or, in better terms, retains no solicitor, or attorney, or counsel, makes no appearance, produces no matter of defence which might open the way for the introduction of evidence, and allows his case to go on, as it may chance, to a final determination, until at last, he finds he has lost an advantage or right which he might otherwise have secured, he certainly is in no condition to ask the indulgence of this court. See Milspaugh vs. McBride, 7 Paige Ch., 509" court="None" date_filed="1839-04-16" href="https://app.midpage.ai/document/millspaugh-v-mcbride-5548411?utm_source=webapp" opinion_id="5548411">7 Paige, 509; Tripp vs. Vincent, 8 Paige, 176.

The court will also require the defendant, in cases like this, to accompany his petition with the answer he proposes to put in, so as to be informed of the character and sufficiency of the de-fence. Wells vs. Oruger, 5 Paige, 164. The defence proposed or offered must not only be sufficient in law, but it must be conscionable in character. Wager vs. Sickle, 3 Paige, 407 ; Lansing vs. McPherson, 3 Johns. Ch. 424; 13 Ves. 563.

We have looked into the answer in-this case, and are unable to perceive any defence to the bill. It admits the mortgages mentioned in the bill to be good and valid, and also the amount claimed to be due. No want of consideration is alleged, nor any fraud, nor any agreement outstanding to control the ordinary legal effect of the mortgage upon the premises, and it sets up that the defendant is a subsequent purchaser of a portion of the mortgaged premises, and claims that the decree should direct the sale to be made in parcels in the inverse order of alienation. This is no defence to the merits of the bill. The fact of a sale of a portion of the mortgaged premises may suggest equitable considerations in directing the mode of executing the decree. But we are not aware that the mortgagor may divide up the mortgaged premises into such parcels as he pleases, and by con* veying them to subsequent purchasers, compel the mortgagee or the court to observe the same, or any other subdivision, in the decree of sale. These are all matters addressed to the equitable consideration of the court upon the proofs submitted.

It is very clear to our minds, that the case made by the papers herein, is not one for a rehearing, even if the answer produced disclosed a defence, and it is equally clear that no defence whatever is disclosed.

If improper or undue means have been resorted todn the execution of the decree, that fact may afford cause for denying confirmation of the action of the officers of the court in that behalf. But it affords no ground for opening the decree, or unsettling the merits as they have been adjudicated. Whether or not the sale in this case was properly conducted, or whether the court ought to, or can now modify the order of sale, or whether it ought to confirm the sale already made, or whether the petitioner is entitled to relief in any other mode, are questions not now before us. We are satisfied that the court below erred in making 4he order from which this appeal is taken, and that the same must be reversed. Were the answer filed, and a hearing had upon the bill and answer, the same decree would require to be made touching the merits, and proof taken as to the condition of the mortgaged premises, and the manner of selling the same as before.

It seems that the proof was’taken in open court, touching the condition of the mortgaged premises, not on account of any allegations in the bill, but in conformity with the requisitions of the statute. This is necessary to be done, whether an occasion for it be set up in an answer or not, and it is difficult to perceive how the answer produced by the defendant would have helped the matter. The answer could not have been proof of the facts set up in it. Why then set aside a decree pro confesso, and incumber the record with an answer which sets up no defence, and delay the proceeding to make an issue which the statute has itself already made, and which the court has already tried and determined ?

The order of the Circuit Court is reversed, and the cause remanded for further proceedings according to law.