Coon v. Seymour

71 Wis. 340 | Wis. | 1888

Cassoday, J.

This is a bill in equity brought in the circuit court for the county of Eau Claire. Its purpose is to cancel notes given, with warrants of attorney to confess judgment, more than twenty years prior to the commencement of this action, and to perpetually enjoin the collection of the judgment entered thereon. One of its objects is to make available as a defense to such judgment damages sustained by reason of an alleged warranty on the sale of the machinery for which the notes were given. Another object is to make available two alleged payments,— one before judgment and nearly twenty years before the commencement of this action, and the other after judgment and more than fourteen years before the commencement of this action. Since the notes were necessarily merged in the judgment, the purpose of the action is essentially to set aside tmd nullify the judgment. It is admitted in the complaint that the plaintiffs knew of the entry of the judgment against them about fifteen years before the commencement of this action. These gross laches, appearing upon the face of the complaint, would seem to be sufficient of themselves to preclude equitable interference. Sable v. Maloney, 48 Wis. 331; Hiles v. Mosher, 44 Wis. 601; Coddington v. Railroad Co. 103 U. S. 409; Graham v. B., H. & E. R. Co. 118 U. S. 161. We do not understand this to be an action upon a judgment which may be brought within twenty j^ears after the cause of action accrued, within the meaning of sec. 4220, R. S. Such an action is to confirm and enforce a judgment. This, on the contrary, is an action to avoid and set aside a judgment for alleged causes existing outside of the record. True, the defendants herein failed to plead the six years statute of limitation (subd. 7, sec. 4222, R. S.), or the ten years statute of limitation (subd. 4, sec. 4221, R. S.). But it has often been held that where a bill in equity discloses gross laches the court will, on its own motion, refuse relief even without such laches having been pleaded. Sullivan v. P. & K. R. Co. 94 U. S. 811; Board of Comm'rs v. C., R. I. & P. R. Co. 18 Fed. Rep. 209; Frame v. Kenny’s Heirs, 2 A. K. Marsh. 145, 12 Am. Dec. 367, and notes; Smith v. Thompson, 7 Grat. 112, 54 Am. Dec. 126; Skinner v. Deming, 2 Ind. 558, 54 Am. Dec. 463, and notes.

But here the plaintiffs had a perfect remedy for their alleged grievances, by motion in the municipal court for the city of Ripon, which was a court of record. Jurisdiction therein could readily have been obtained by service upon the attorney of record in entering the judgment. This of itself was sufficient to require the refusal of equitable interference by any other court. Graham v. B., H. & E. R. Co., supra; Henderson v. Mitchell, 1 Bailey, Eq. 113, 21 Am. Dec. 526. As observed, the subject matter of this action is to open and set aside the judgment of the municipal court. The circuit court of Eau Claire county had no jurisdiction over such subject matter. This has, in effect, been recently decided by this court. Orient Ins. Co. v. Sloan, 70 Wis. 611. In that case Mr. Justice Lyon has so fully discussed the question presented in this case as to require nothing additional here.

By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss thp complaint. ■ , ,