95 Wis. 441 | Wis. | 1897
It sufficiently appears that the failure of the plaintiff to be present with his witnesses and attorneys in time for the trial was wholly on account of his being misinformed of the conditions of the order setting the case for .such trial. TJnder the statutes providing for the relief of a party from the consequences of mistake, inadvertence, surprise, or excusable neglect (sec. 2832, R. S.), a party may properly be held excusable for the negligence of his attorney, and be relieved from such negligence on proper terms. Whereatt v. Ellis, 70 Wis. 207; Hanson v. Michelson, 19 Wis. 499; Flanders v. Sherman, 18 Wis. 576. Such was the conclusion of the learned trial judge, and on the record the case was an ordinary one, calling for such relief upon reasonable terms. There is no arbitrary rule by which the terms for opening a default in such a case can be fixed. The power in the matter is of a purely discretionary character, and should be exercised, not harshly, but with sound judgment, in such manner as to do justice between the parties so far as that end can be practically attained. Obviously the court must be governed by the principle that a party circumstanced as plaintiff was should bear the consequences of his own fault, rather than that the diligent party should suffer. To that end it was proper that the plaintiff should be required to pay the reasonable expenses incurred by the defendants, which they would lose by opening the judgment. But the court should not have gone further than to require the moving party to pay such reasonable expenditures, and could not without overstepping the bounds of legal discretion. Union Nat. Bank v. Benjamin, 61 Wis. 512.
It follows from the foregoing that the question involved
By the Cov/rt.— That part of the order of the circuit court appealed from is reversed, and the cause remanded with directions to modify such order in accordance with this opinion.