36 Wis. 171 | Wis. | 1874
We cannot, on this appeal, inquire into the correctness of the judgment below. It is obvious that the court below bad jurisdiction of the cause, and therefore to render the judgment. The judgment may be erroneous, but it is not void. This seems very plain. And it could be reviewed here only by an appeal directly from it.
The action was brought to foreclose a mortgage ; and, after sale, judgment went against the respondent for deficiency.
The law is too well settled in this state for discussion here, that, as a rule, the circuit courts have not power to review their own judgments after the term at which they are rendered, except in cases within sec. 88, ch. 125, R S. In view of such general want of power, that section vests a discretion in courts to grant relief against their own judgments and orders on grounds of mistake, inadvertence, surprise, or excusable neglect, within a year after notice of the judgments or orders. And, with some exceptions not material here, this is the sole authority of circuit courts to review their own judgments, after the term of recovery. Insurance Co. v. McCormick, 20 Wis., 265; Landon v. Burke, 33 id., 452; Scheer v. Keown, 34 id., 349. The opinion in the last case reviews the cases on the point, and fully states the rule and its exceptions.
And there can be no doubt that the court below exceeded its authority in vacating the judgment in this case, or that the order vacating it should have been reversed on appeal.
But no appeal was taken from the order. The appellant, after the expiration of his time for appealing from it, moved to set it aside. The court below denied his motion ; and from the order denying it he prosecutes this appeal. And the remaining question is, whether he brings himself within the provisions of sec. 38, ch. 125, supra. We think he does. He seems to have provided with sufficient diligence for resisting the motion to vacate his judgment, on the day for which the motion was noticed. It happened that the motion was not taken up till several days later, when it was granted in his absence; and he thereupon neglected to attend to the matter or to prosecute an appeal. We think that this may well be considered inadvertence, or at worst excusable neglect, under the 'statute ; the more readily, as the appellant might well consider, the respondent’s motion as one which could not prevail, because clearly beyond the discretion of the court below.
By the Court. — The order appealed from is reversed, and the cause remanded with direction to the court below to vacate the order of May 23,1873, vacating the judgment for deficiency.