Butler v. Mitchell

17 Wis. 52 | Wis. | 1863

By the Court,

Paine, J.

This suit has once been before this court. 15 Wis., 355. And we then held that the trustees of the Eox & Wisconsin River Improvement Company were not personally liable for services rendered for the company under their employment. We were obliged, however, to affirm the order refusing to set aside the judgment and allow the appellant to come in and defend, for the reason that no affidavit of merits had been filed. But we modified the order so as to allow the motion to be renewed. It was afterwards renewed with an affidavit of merits, and the court below still refused to open the judgment and allow the appellant to file his answer, and he has again appealed.

The first question to be disposed of is, whether the statute which provides that the court may at- any time, within one year after notice, relieve a party from a judgment which has been taken against him through his mistake, inadvertence, surprise, or excusable neglect,, presents an insuperable obstacle to furnishing this relief after the expiration of the year, upon the facts which this ease presents.

We agree with the counsel for the respondent that a written notice is not necessary, but that if -the party allows the year to expire after knowledge of- such judgment without applying for relief, it is then too late. It is true that in matters of practice where notice is required, it must generally be a written notice. But the very nature of the provision in section 88, chapter 125, R. S., shows conclusively that no written notice was intended there, but the party was required to act upon any reasonable knowledge of the fact, in order to entitle himself to the relief.

But here the appellant moved within a month after the judgment was entered, upon an affidavit showing that until a short time before the motion he had supposed that the suit was brought against thfe trustees in their official capacity only, and without any design to charge them personally. We considered this a very natural, misapprehension, and one which fully entitled the appellant to the relief authorized by the statute, either on the ground of mistake or excusable neglect, provided he had a good defense. The motion was decided against him, and he appealed to this court. The judgment bad been entered on the 3d day of June, 1861. The appellant made bis motion on tbe second day of the next mouth. The decision of this court was made in May, 1862, but a motion for a re-hearing was made by the respondents, which was not finally disposed of until September, 1862. Upon these facts we think the statute does not furnish a bar to the relief after the year. The statute does not mean that the relief must actually be furnished within the year. Otherwise the opposite party might, by appealing and contesting the matter to the utmost, use up the year and thus defeat the remedy. And where the motion is made as promptly as it was here, and prosecuted with reasonable diligence, and a final decision of this court is not obtained until after the expiration of the year, and that decision is to deny the motion for a mere defect in practice, but with liberty to renew it, we think it is entirely competent for the court to grant such liberty. And the fact that it is nominally called a new motion does not prevent it from being substantially a continuation of the same application. It is in the nature of an amendment of the papers on which the motion'was founded. And we think it would not only defeat the ends of justice, but would be doing violence to the spirit and intent of the statute itself, to say, because the litigation had been prolonged beyond the year, when it appeared that to supply a formal defect it was necessary to amend the application and present it again, that these facts deprived the court of all power to give the relief We do not regard this statute as so imperative in its character as the statute of limitations. And if it were, the renewal of a motion on leave, to supply a formal defect in the papers, should be considered rather as an amendment to the original motion.

But it is claimed that this motion should have been denied on account of the appellant’s laches in making it. The same position was taken on the former appeal. But it seemed to us to have so little foundation that we said nothing about it in the opinion. For that reason the point has been strenuously urged again. And tbe respondent’s counsel criticised tbe appellant’s original affidavit as evasive in not stating tbe exact time wben be received notice of tbe judgment, and in implying that it was only on tbe 1st of July, wben tbe sheriff called on bim with tbe execution, that be first learned that it was sought to bold bim personally liable. This criticism was based upon Gottrill’s affidavit to tbe effect that be bad, on tbe 3d of June, tbe day wben tbe judgment was rendered, deposited in tbe post office a notice addressed to tbe appellant, informing bim of it. But Gottrill's affidavit shows that tbe appellant was not then at borne, and Buttriclc's shows that be was then in tbe city of New York. But even if be bad been at borne, and bad received Gottrill's notice, there is nothing in that notice that was any more calculated to inform him of bis mistake and show that it was designed to bold him personally liable, than there was in tbe summons and complaint. A lawyer might have understood it from either. But one not a lawyer, acting in an official capacity as trustee, and knowing that a suit bad been brought against bim and bis co-trustees for services rendered at their request, might very naturally suppose that be was not to be held personally liable. And having once fallen into that mistake, there was nothing in Gottrill's notice which was calculated to correct it. It merely informed bim that judgment bad been rendered and called bis attention to it that be might arrange it. He might still continue very naturally in bis mistake that it was only a proceeding against bim in bis official capacity. We see no reason to doubt, as his affidavit implies, that it was on tbe first of July, wben tbe sheriff came with an execution, that be first became aware that be was claimed to be personally liable. But even if be had known it as soon as be returned from New York, tbe exact time of which does not appear, there is no ground for saying that where tbe motion is made within a month after tbe judgment was entered, there is any such laches as to bar tbe relief We do not understand that tbe law requires a party to move on the first notice of such judgment, as though it were a matter of life or death; but that, due regard being had to the just claims of other business, to the terms of the court, and any other material facts, he must not be guilty of unreasonable delay.

Nor do we think the delay in renewing the application, after the cause was remitted from this court, ought to bar the relief. It was remitted in September, 1862. There was a term of the county court in November, at which it was not noticed, but it was noticed in November for the December term. It must be admitted that this was not renewing it at the earliest possible moment, yet it cannot be regarded as such unreasonable delay as ought to defeat the right. The appellant’s counsel had a right to regard the merits of the litigation as substantially disposed of by the decision of this court, which had been already made, and to assume that his right to the relief asked would not be further contested. This being so, the mere delay at the November term, when there was to be another term in December, was not sufficient to prevent his obtaining what this court had already decided he was entitled to.

We regard the affidavit of merits as sufficient.

The order is reversed, with costs, and the cause remanded with directions to the county court to grant the relief asked by the motion.