Field v. Heckman

118 Wis. 461 | Wis. | 1903

Marshall, J.

While a trial court has broad powers as to judgments by default, enabling it to relieve a party therefrom for fraud of the one obtaining the judgment, or surprise, mistake or excusable neglect of such party, upon application therefor being seasonably made, it cannot properly act arbitrarily in such'a matter. Its action should always be based upon some legitimate ground, the end in view being to promote justice along the lines of those remedies for wrongs which the law affords to litigants. In view of that, if the affidavit upon which the order was granted did not indicate some injustice to the moving party, actual or probable, and some reasonable excuse for bis failure to be present at the trial of the cause, and for not moving to set the judgment of reversal aside promptly upon bis counsel’s receiving notice'thereof, such order must be held erroneous. Stilson v. Rankin, 40 Wis. 527.

We have looked in vain in the record to find that respondent made complaint upon the bearing of the motion, or in his affidavit in support of the same, that the judgment of reversal was itself wrong. The chief ground urged in support of the motion was failure, by reason of the fault of appellants’ counsel, to obtain a hearing upon the taxation of costs, and of the excessive amount in fact taxed. That, of course, furnished no ground whatever for vacating the judgment of reversal. The taxation of costs was a mere incidental effect thereof. It was stated in the moving affidavit that respondent bad a good defense to appellants’ cause of action, but such cause of action was not directly involved. It had not been tried, nor was it triable upon the -appeal. The action having been dismissed below without a trial, and the appeal having been taken without any affidavit making a trial possible in the circuit court, the only question presented in the reviewing court was whether the justice properly decided that his jurisdiction terminated by reason of the adjournment.

It very conclusively appears from several circumstances that the mere fact that the justice’s judgment was reversed was not the cause of complaint upon which the order complained of was based. Significant of such circumstances is the fact that prior to the reversal respondent endeavored to avoid the effect of the appeal by satisfying the judgment in the justice’s court and bringing his action to that end to the attention of the circuit court. Another of such circumstances is the fact that for nearly two weeks after the reversal was known to respondent’s attorney respondent slept upon his rights and made no complaint till after the unsuccessful attempt of his attorney to obtain a hearing before the clerk on the taxation of costs. The attorney testified in support of the motion that he did not know of the judgment till the execution was issued. The only reasonable way, it seems, to reconcile that with other statements in his affidavit is to consider that he did not mean that he had no knowledge of the reversal till informed of the execution, but that he had no knowledge of the taxation of costs and of the perfected judgment till then. His admission that the cost bill was served upon him two days after the reversal and eleven days before he was informed of the execution, in effect admits that he was informed of the reversal at an early date, and that the final act of perfecting the judgment was only delayed by the necessity to first tax the costs. Upon the whole situation we are unable to perceive any excuse stated in the moving affidavits for setting aside the judgment of reversal.

There was some reasonable showing made, upon the motion, for relief from the taxation of costs upon terms. Appellants’ attorney was not at fault because respondent’s attorney failed to be present when the costs were taxed. He gave due notice of the time when such cost bill would be presented to the clerk for consideration. He appeared before the clerk, pursuant to such notice, and the costs were regularly taxed. The failure of defendant’s attorney to be present was wholly his own fault. True, he testified that he •called at the clerk’s office and requested the clerk to notify him of the proceedings to tax the costs before completing the same, and that he relied upon receiving such notice, but it does not appear that the clerk agreed to give such notice, nor, if he did, that appellants’ attorney was concerned in the matter in any way whatever. The only legitimate objection to the costs as taxed is the inclusion therein of that part of the judgment rendered by the justice, not paid by the appellants-in order to perfect the appeal. The excess did not amount to more than reasonable terms for setting aside the taxation. It probably did not exceed $10. The right of respondent upon the one band was therefore equitably offset by appellants’ right upon the other. In other words, if the trial court bad allowed the judgment for costs to stand as the same were taxed, no injustice would have been indicted upon respondent.

If we were to waive all other questions, that of whether respondent was prejudiced by reason of bis attorney’s failure to be present in court upon the bearing of the cause would have to be ruled against him. The justice’s judgment was. clearly erroneous. That was apparent upon the most casual inspection of bis return. It was rendered, evidently, upon the theory that jurisdiction was lost by adjourning the cause a second time without compliance with sec. 3631, Stats. 1898, requiring an affidavit setting forth the particular matters specified therein. Such, section, however, does not apply strictly to a case where a second adjournment is rendered necessary by the formation of an issue after the first adjournment, as was done in this case. That is governed by subd. 11, sec. 3626, Stats. 1898, which provides that if an amendment be made after the joining of issue, or answer be made after adjournment, and it be made to appear to the satisfaction of the court by oath that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment will be granted. It will be observed that such provision does not require any particular matter to be stated as a prerequisite to adjournment. It simply requires that the necessity for the adjournment shall be made to appear by oath to the satisfaction of the justice. That being done, the justice not only has authority to grant the necessary adjournment, but it is bis judicial duty to do so. The docket entries in this case show that upon the amended answer being filed, satisfactory cause upon oatb was shown for an adjournment. The justice so adjudicated. He then bad no other course to pursue than the one which he did pursue.

The conclusion from the foregoing is that there was no merit in respondent’s application to set the judgment of reversal aside in any view of the matter. The most that could reasonably have been claimed was a new taxation of costs. Since, as before indicated, the excessive amount of costs taxed was no more than what might have been properly imposed as a condition of granting relief from the taxation, there was no good reason for granting defendant any substantial relief at all. The order setting aside the judgment in toto without terms, and compelling appellants, who were guilty of no injustice to respondent, to surrender entirely their legal right to a reversal of the justice’s judgment, and to costs upon the appeal, and to accept the amount due them according to their complaint filed in justice’s court, or submit to a rehearing upon the appeal, seems to have been wholly unjustifiable. The order must be reversed.

By the Gouri. — The order appealed from is reversed, and the cause remanded with directions to enter an order reinstating the judgment of reversal.