78 Wis. 164 | Wis. | 1890
Had tbe court commissioner power, under sec. 2832, E. S., to relieve tbe defendant by vacating tbe judgment wbicb bad been entered against bim by default? It appears to us: tbis question must be answered in tbe affirmative, under tbe provisions of tbe statute. Sec. 2832 provides that “ tbe court, or a judge, may likewise, in discretion and upon sucb terms as may be just, at any time witbin one year after notice thereof, relieve a party from a judgment or order against bim through bis mistake, surprise, or excusable neglect.” Tbe application for rebef was made here soon after tbe judgment was entered, and was therefore in time. But it is said tbe commissioner bad no authority to vacate a judgment of tbe circuit court. " That tbe circuit judge at chambers might have set aside tbe judgment on a proper showing would probably not be denied. True, tbe powers of a drcuit judge at chambers, under our constitution and statutes, are not very clearly defined, but we have no doubt they include tbe authority to vacate a judgment in a case covered by sec. 2832. Sucb, we believe, has been tbe practice and tbe understanding of tbe. profession in that regard. Now, sec. 2815 in effect ertacts that where tbe statutes authorize an order or proceeding to be made or taken by tbe court it must be done by tbe court in session; where by tbe court or a presiding judge thereof, no county judge or court commissioner can act. But, except as so provided or otherwise expressly directed in particular instances, a county judge or court commissioner may exercise witbin bis county tbe powers, and shall be subject to tbe restrictions thereon, of a circuit judge at chambers, according to existing practice and tbe statutes, in all actions or proceedings in courts of record. It is impossible to mistake tbe intent or effect of these provisions. They plainly confer upon a court commissioner, witbin bis county, tbe powers of a circuit judge at chambers over all actions and proceedings in courts of record, except where it is otherwise
The order provided'that the default be opened and the defendant be allowed to file and serve his answer and the special answer to the affidavit for an attachment within, ten days from the date of the order; also on the further condition of paying the plaintiffs’ attorneys $20 within ten days. The answers were served upon the plaintiffs’ attorneys, and the $20 was paid them, and both the answers and money were retained. The plaintiffs subsequently moved the circuit court to vacate the order of the commissioner, which motion was granted, but without prejudice to the right of the defendant to move to set the judgment aside on another application. We think the circuit court erred in setting aside the' order of the commissioner. We have held that the commissioner had power to make the order setting aside the judgment, and the power was wisely exercised, in view of the matters contained in the affidavits which were used on the motion, and which showed a clear case of excusable neglect. The receipt by plaintiffs’ attorneys of the $20 would cure any irregularity in the proceedings before the commissioner, if there were any, while the case made fully justified the commissioner in making the order opening the default. It is not necessary to determine on this appeal whether, by retaining the $20, the plaintiffs waived the right to have the order of the commissioner reviewed by the circuit court; they certainly must be deemed to have waived any irregularity in the proceeding to obtain the order, if any had intervened. But the application of the
It follows from these views that the order of the circuit court must be reversed, and the case remanded for further proceedings according to law.
By the Court.— It is so ordered.
