101 Wis. 166 | Wis. | 1898
The following opinion was filed September 20, 1898:
The provisions of sec. 2832, E. S. 18?8, under which it is sought to justify the action of the court below, are substantially to the effect that the court or judge may, in discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment against him “ through his mistake, inadvertence, surprise or excusable neglect.” The appellant con
It was long ago determined that sec. 2832 did not apply to judgments of this court. Pringle v. Dunn, 39 Wis. 435. In Stevens v. Clark Co. 43 Wis. 36, the judgment of the court below was affirmed reluctantly, upon grounds that seemed technical. This court, upon rehearing, was asked to modify its judgment so as to direct a new trial, as the only means, of preventing obvious and gross injustice. This application was denied on the ground that there was neither statute to authorize, nor practice to sanction, a discretion for a new trial upon a judgment of affirmance. The practice followed in this case, of asking this court to amend or- modify its judgment, seems to recognize the theory contended for by the appellant, — that the judgment of this court is final upon the rights of the parties. In Smith v. Armstrong, 25 Wis. 517, the judgment had been appealed to this court and affirmed. After the case had been remitted, the court below was asked to modify the judgment in certain particulars. From an order denying this request, an appeal was taken. In disposing of the question, Mr. Justice Paine says: “In respect to the application to amend the judgment, it not being a mere clerical mistake, but a matter of substance, it is a sufficient answer to say that this very judgment having been rendered, and affirmed on appeal to this court, has become final between the parties, and, even though it were conceded that there were errors in it, they are no longer subject to correction in the circuit court, under the guise of
The legal effect of a judgment of this court having been considered in so many cases, and its finality, as to any power . of the court below to disturb it, having been sanctioned by such a long course of judicial decisions, it would seem not. to be an open question. But we are referred to the case of State ex rel. Turner v. Circuit Court for Ozaukee Co. 71 Wis. 595, as an authority sanctioning the action of the court below in this case. It must be admitted that it does. The statute upon which that decision was based (R. S. 1878, sec. 4719) is very much like the one in question here, although referring only to criminal cases; and the decision goes to the full length of saying that, notwithstanding the judgment has. been taken to this court and affirmed, yet the court below, in its discretion, may set it aside. The decision rests largely upon the fact that the statute was probably borrowed from Massachusetts, and should receive the same construction as-ilas been given it by the court of that state. The decision
It is argued, however, that, because the judgment here
But, if it were admitted that the court below had power to set aside the judgment after affirmance, we are clearly of the opinion that the respondent has not brought herself within the lines of the statute. The affidavit upon which the order was based sets out that the demurrer ore tmus was interposed, and the only question presented to the trial court was whether the plaintiff’s intestate was protected by the provisions of ch. 220, Laws of 1893. Upon that ground the demurrer was sustained, and both respondent and her counsel were surprised at the decision of this court, holding that the complaint was bad on the grounds stated in the opinion. The “ surprise ” which entitles a party to relief under this statute must be something more than surprise at the ruling of the court. Breed v. Ketchum, 51 Wis. 164; Anderson v. Market Nat. Bank, 66 How. Br. 8; and Root v. C. M. R. Co. 33 Fed. Rep. 858.
By the Court.— The order of the superior court of Milwaukee county is reversed, and the cause remanded for further proceedings according to law.
The respondent moved for a rehearing, or for an order modifying the mandate of this court so as to direct the trial court, in its discretion, to permit the complaint to be amended so as to overcome the defects pointed out by this court re