101 Wis. 343 | Wis. | 1898
Lead Opinion
The following opinion was filed November 1, 1898:
The statement of facts preceding this opinion discloses the only assignments of error that need be considered. There are many other errors assigned in appellant’s brief and ably argued by counsel on both sides, which would call for careful consideration if reached. But the first point made by appellant is considered decisive of the appeal, so a complete statement of facts upon which the other errors are-assigned would unnecessarily incumber the record to be preserved, and is therefore omitted.
Sec. 3072, Stats. 1898, provides that, “It shall be the duty of the plaintiff in any action or proceeding when a judgment
It was the duty of plaintiff to have paid the judgment for costs rendered on the reversal of the first judgment, and to have brought the case to trial within one year after such reversal, unless such conditions were waived by the defendant. A failure to perform that duty, in the absence of a waiver of it, entitled defendant to a dismissal of the complaint. Both payment of costs and bringing the action to a new trial were conditions precedent to the right to further proceed on the part of plaintiff. It was competent for defendant to waive cither condition expressly or by implication, but it was not in the power of the trial court to dispense with either condition and to so administer the statute as to fit the financial situation of the plaintiff. There was no discretionary power whatever in the matter lodged in the trial court.
No legitimate ground is perceived for saying that defendant, at any stage of the proceeding, waived its statutory rights. It did nothing after the reversal except to resist plaintiff’s proceeding further without paying the costs, and to participate- in what occurred on plaintiff’s motion, protesting at every step because of their nonpayment, and
The neglect of plaintiff to pay the costs in this court, under the circumstances, was by no means a mere irregularity that was waived by defendant’s participating in the trial after repeatedly insisting upon its statutory rights and preserving its exceptions to the refusals to grant them.
It is suggested that the law is unconstitutional in that it contravenes sec. 9, art. I, of the state constitution, which provides that every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property, or character; that he ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws. That provision is very old. Its history dates back to the days of Magna Carta. It was designed to prevent a species of official exactions made as the price of delaying or expediting justice. Erom the lowest officer to the king himself, in the olden times, bribes were freely demanded and taken to procure the benefits of the laws. They bore no relation whatever to our system of ex-actions for expenses of litigation, called costs, or the charge as a tax on suits, imposed under laws which bear equally upon all; but they were arbitrary exactions sanctioned by
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment dismissing the complaint, with costs to be taxed according to law.
Rehearing
A motion for a rehearing made by respondent has been carefully considered, without effect other than to confirm the views expressed in the opinion on file. Counsel, in presenting the matter, indulged in some intemperate language, bordering, at least, on discourtesy, ■ and meriting some rebuke in disposing of the motion. The high regard entertained for them here, as gentlemen distinguished in the profession and of care in observing the ethics of their calling, enables us on this occasion to excuse their intemperate words, considering them as used without deliberation or bad intent, but impulsively, under the sting of disappointment at an un-looked-for result in a matter of deep professional interest to them and pecuniary interest to their client. Counsel should be comforted in such situations by the reflection that courts do not make the law, and that the safest judicial system for all, and the one which, in the long run, best protects the most valuable personal rights of property, particularly as to the weak and humble, is one where courts may be depended on to administer the law firmly, according to the intent of its creators, as written in the books, even though, in an individual case now and then, some hardship may result. Ideal justice stands high above all fear or favor, testing rights by the law as it is believed to be written, with eyes blinded to consequences which courts cannot consider, though human sympathies, possessed by judges in as high degree as other people, be touched thereby most deeply. It is not improbable that such sympathies are often most deeply touched in situations where there can be no possible relief by following the leanings they tend to influence.
We are asked to reconsider this case in the light of Mills v. Nat. F. Ins. Co. 92 Wis. 90, the theory being that the holding there was overlooked here, and was overruled with
A careful, dispassionate review of the very brief opinion of Mr. Justice NewMAN in the Mills Gase, will disclose that the only point decided was that an irregular notice of trial is waived by going to trial on the merits. True, as appears from the statement of facts, one of the. objections raised to the notice of trial was that the costs in the supreme court had not been paid, yet the situation, when there was a mere premature notice of trial, was what the court considered, and the point thus raised, what the court decided. That not only clearly appears by the opinion, but by the authorities cited therein. There was no objection to the trial itself, except incidentally, by the objection to the notice of trial made on two occasions, first to placing the cause on the calendar, and second, by moving to strike it from the calendar. This court held rightly, that "the mere placing of a cause on the calendar improperly is an irregularity which is waived by going to trial on the merits. Such is Mills v. Nat. F. Ins. Co. In this case, if counsel for appellant had relied on a mere objection to the notice of trial as premature, the result would have been the same as in the Mills Gase. It is by no means certain that failure to pay the -costs before notice of trial, in a case circumstanced as this was, would be even an irregularity. It is not the payment by the losing party, of costs adjudged in this court, before he can notice the cause for a new 1/riat below which is the real condition required
In this case, appellant’s counsel, at the first opportunity, objected to the trial because, of noncompliance by respondent with the statute in question, and moved for a stay of proceedings till the statute should be complied with. Trues we' said in the former opinion that a motion was also made to strike the case from the calendar on the same ground, which was denied, while the order of the lower court shows that such motion, though made, was withdrawn. But, looking-at the bill of exceptions, which purports to give a history of what occurred, without reading the order, it fairly warranted what was said. The language is: “Defendant moved to strike such action from the calendar on account of plaintiff’s failure to pay said costs, and further moved the court that proceedings in the action be stayed and that plaintiff be not permitted to bring said cause to trial until he pay said costs. The court overruled said motion.” There is not a suggestion there of any withdrawal before the ruling, though, as said before, in the order it is recited that the objection to the-notice of trial was withdrawn; but we assumed, as we had a right to do, that the history of the matter outside the order was correct. But this is not material. We only refer to it, because of complaint by the learned counsel for respondent,, to show how the inaccurate statement in the opinion came, to be made.
As before indicated, a mere motion to strike from the-calendar did not successfully reach the defect, or the failure to insist upon such motion waive it. Counsel for appellant had evidently read with profit Mills v. Nat. F. Ins. Co. 92 Wis. 90, and invoked the statute at the very point where-it barred further proceedings, by objecting to the trial and
By the Court.— The motion for rehearing is denied.