Barber v. Rukeyser

39 Wis. 590 | Wis. | 1876

Cole, J.

The facts in this case, as proven on the trial and found by the court below, furnish no sufficient ground for granting the relief demanded in the complaint. In Stowell v. Eldred, 26 Wis., 504, this court said that the rule was well settled that a court of chancery would relieve against a judgment at law on the ground of its being contrary to equity, when the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or when he was prevented from availing himself of the defense by fraud or accident, or the acts of the opposite party, unmixed with negligence or fault on his part. The ground for impeaching the judgment in this case is, that it is inequitable and unjust, and was in violation of a verbal stipulation between the attorneys, that, in the event the action of the plaintiff against Simon Eukeyser was decided in favor of the defendant in that action, then the suit in which the judgment sought to be enjoined was obtained, should be discontinued. There is great conflict/in the evidence whether any such verbal stipulation was entered into, and the court found that there was not. But, assuming the fact to be otherwise, yet the plaintiff has been guilty of such gross laches as must preclude him from asking relief against the judgment.

It appears that the attorney of the plaintiff had notice that the case of Adolph Rukeyser was called for trial, and he was requested by an officer o£ court to attend at once and look after it. He neglected to appear and set up the defense that by the stipulation, or in consequence of the payment of the judgment in the Simon Eukeyser case, this cause was to be discontinued. Furthermore, notice of the taxation of costs and of the entry of judgment was served upon the attorney of the present plaintiff, and such attorney failed to. appear at the taxation or object to tbe entry of judgment. No attempt was made, by motion, to vacate tbe judgment witbin tbe term at wbicb it was rendered, or while it was under tbe control of tbe court, upon any ground upon wbicb it is now sought to impeach it. All tbe facts then existed, witbin tbe knowledge of tbe party, affecting tbe justness and integrity of the judgment. When a party is in possession of all tbe facts constituting bis defense, has an ample opportunity to avail himself of them, but absolutely neglects to do so while relief in tbe action itself is within tbe reach of tbe court, he must abide tbe consequences. “ Equity always discountenances laches.” 1 Story’s Eq. Jur., § 64 a.

By the Court. — The judgment of tbe county court is affirmed.