108 Wis. 275 | Wis. | 1900
The single question presented on this appeal is whether the circuit court abused its discretion in holding that appellant had not satisfactorily shown that justice required a revision of the case in compliance with sec. 4035, Stats. 1898. Oakley v. Davidson, 103 Wis. 101. The reasons urged for review are that the county court erred in admitting the notes in evidence, and that appellant’s petition showed that he had a good defense on the merits.
The admission of the notes was objected to principally because they showed upon their face material alterations, but also because no proof was made of the authenticity of the signature. Without passing upon the first objection, a subject discussed in Maldaner v. Smith, 102 Wis. 30, it seems impossible to acquit the county court of error in overruling the second ground. The alleged maker of the notes being dead, the rule of the common law applied, and proof of his signature was necessary before they could be received. Campion v. Schinnick, 93 Wis. 111. This conclusion, however, is not final upon the question which the circuit court had to consider. Full justice may be done by a decision notwithstanding the commission of specific errors. Nay, more, a judgment may be unsupported by the record and proofs on which it was rendered, so that upon appeal to a court of errors it must be reversed, and yet it may appear that justice would not be promoted by revision. A judgment may be just, though erroneous. Obviously the allowance of the claim is not unjust by reason alone of the
It thus appearing that the fact that the county court committed error in receiving the notes in evidence does not necessarily establish that justice requires revision, the question remains whether the allegation, sworn to by Larson, that Johnson, the appellant, “ believes that justice requires a revision of the case for the reason that there never was any consideration for said notes, and the estate of said deceased does not owe the indebtedness thereby purported to be evidenced, or any part thereof, as said executor is informed and believes,” is sufficient to convict the circuit court of abuse of discretion in denying to appellant the privilege of appealing.
The question whether justice requires revision in cases under sec. 4035 is not a technical one. It appeals to broad and intelligent judgment and discretion in the court, adapted to variant situations, and involving different considerations. The amount in controversy may be insignificant; a purpose of delay or obstruction may be apparent; applicant’s views of the law.may be mistaken; the facts on which he relies may be immaterial, or the evidence thereof frivolous or obviously insufficient. "While, in deciding it, a genuine and substantial controversy arising from conflict between allegations of the petition and counter affidavits as to the facts
The field of discretionary consideration in allowing appeal after absolute right is lost is, as to this branch of the question, very similar to that involved in opening a default or setting aside a judgment to let in a defense. It has frequently been held in the latter class of cases that allegations as to a defense, made upon information and belief, are not sufficient to justify relief from a judgment and opportunity to defend. Pinger v. Vanclick, 36 Wis. 141, 145; Superior C. L. Co. v. Dunphy, 93 Wis. 188, 193; Thayer v. Swift, Walk. Ch. 384; Meach v. Chappell, 8 Paige, 135. Completed litigation should not be revived without full affirmative showing that there are valuable rights at least likely to be protected by further hearing, and the authorities last cited are not without weight as guides to circuit courts upon applications like the present. If such courts allow themselves to be satisfied by the information and belief of an applicant,
By the Court.— The order appealed from is affirmed.