Koch v. Wisconsin Pea Canners Co., 146 Wis. 267

146 Wis. 267 | Wis. | 1911

ViNJE, J.

We shall assume that the trial court did not abuse its discretion in refusing to grant a further continuance upon the showing made and in proceeding with the trial to judgment. It will therefore not be necessary to consider and decide a number of questions discussed in the briefs and upon the oral, argument. We shall consider only the question of whether or not, on the showing made therefor, the trial court abused its discretion in refusing the application under sec. 2832, Stats. (1898), to set aside the verdict and grant a new trial upon such terms as might be just. By reference to the foregoing statement of facts it will be seen that the motion was taken under advisement by the court and no ruling made thereon during the term, resulting in its being overruled under the provisions of sec. 2878, Stats. (1898), as amended by ch. 100, Laws of 1901. Kurath v. Gove A. Co. 144 Wis. 480, 129 N. W. 619. Under this state of facts a preliminary question arises as to whether or not such constructive overruling by operation of law shall be deemed the exercise of discretion on tbe part of tbe trial court, or a failure or refusal to exercise discretion. Upon reflection we reach tbe conclusion tbat it must be deemed tbe exercise of discretion, and tbat an appeal under sucb circumstances stands bere on tbe same footing, and calls for tbe same relief, as an appeal from an order denying a motion for a new trial. Otherwise, every appeal sucb as this would have to be reversed on tbe technical ground tbat tbe trial court bad failed or refused to exercise its discretion when it should have done so, and tbe case remanded for tbe exercise of its discretion upon tbe application. So we must treat tbe constructive denial as an actual one.

This brings us to tbe main question in tbe case: Should tbe trial court, in tbe exercise of a sound discretion, have granted tbe application for a new trial % Counsel for plaintiff argues tbat no less should be required of a defaulting party who seeks to obtain relief after verdict or judgment than is required from a party who seeks a continuance in tbe first instance. This is not correct. In order to obtain a continuance a party must show diligence. To obtain relief from a verdict or judgment it is enough to show excusable neglect. See. 2832, -Stats. (1898). In tbe case at bar we think tbe defendant has shown excusable neglect. When tbe January term began at Manitowoc county it was apparent tbat tbe case would not be reached till tbe 12th, at tbe earliest. With tbat knowledge in mind, Mr. Doe held himself in readiness to begin tbe trial of a case in tbe circuit court for Milwaukee county on tbe 10th, which all parties believed would be finished on tbe 11th. Tbat case was not reached till tbe 11th, and, much to tbe surprise of all parties concerned, was not finished till January 17th. In tbe meantime defendant made application for a continuance, first for a day, which was granted, and then from day to day, which was denied. Sucb conduct on tbe part of an attorney, under such circumstances, certainly cannot be characterized as inexcusable neglect, and tbe trial court should, have granted the motion upon proper terms. Omro v. Ward, 19 Wis. 232; McArthur v. Slauson, 60 Wis. 293, 19 N. W. 45; Bloor v. Smith, 112 Wis. 340, 87 N. W. 870.

Counsel for plaintiff contends that the showing made for a new trial was insufficient because no affidavit of merits was filed. The answer of defendant, after making certain admissions and after alleging that it had no knowledge or information sufficient to form a belief as to the existence of certain other facts therein alleged, not relating to the negligence of the defendant, contains this specific denial: “Defendant, further answering, denies each and every allegation in'said complaint contained not hereinbefore expressly admitted.” This is an express denial of the allegations of negligence contained in the plaintiff’s complaint. The answer was duly verified by the treasurer of the defendant corporation to the effect “that the same is true to his own knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes it to be true.” It will therefore be seen that the allegations of negligence in the complaint are denied by the answer duly verified upon personal knowledge. That a verified answer stating a good defense, accompanied by affidavits excusing a party’s neglect, satisfies all the requirements of sec. 2832, Stats. (1898), and the practice of this court, has been repeatedly held. Omro v. Ward, 19 Wis. 232; Levy v. Goldberg, 40 Wis. 308; Superior C. L. Co. v. Dunphy, 93 Wis. 188, 67 N. W. 428; Bloor v. Smith, 112 Wis. 340, 87 N. W. 870. Plaintiff, to sustain his contention, cites the cases of Pinger v. Vanclick, 36 Wis. 141; Stilson v. Rankin, 40 Wis. 527; Superior C. L. Co. v. Dunphy, supra; Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426; and Phillips v. Portage T. Co. 137 Wis. 189, 118 N. W. 539.

In Pinger v. Vanclick, 36 Wis. 141, there was no verified answer, and the affidavit of the attorney upon which it was sought to open the default stated that “upon examination of tbe testimony given before tbe justice and from tbe statement of facts made to bim by tbe defendant be [affiant] verily believes that said defendant bas a valid defense to said action upon tbe merits;” but tbe affidavit did not show that tbe defendant stated tbe whole case to bis attorney, or that tbe statement be made was true, and was therefore properly held to be insufficient.

In Stilson v. Rankin, 40 Wis. 527, there was a verified answer upon information and belief only, and it was held that tbe affidavit of an attorney that, from tbe defendant’s statement of tbe case to bim, be believes that tbe defendant bas a good and substantial defense upon tbe merits, is not a sufficient affidavit of merits.

In Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426, there was no verified answer, and it was held that an affidavit stating that tbe executor “believes that justice requires a revision of tbe case for tbe reason that there never was any consideration for said notes, and tbe estate” does not owe tbe debt, “as said executor is informed and believes,” but not stating what information tbe executor bad or any facts justifying bis belief, was insufficient.

In Phillips v. Portage T. Co. 137 Wis. 189, 118 N. W. 539, it appeared that tbe allegations of tbe answer were very meager upon the facts going to tbe defense and were upon information and belief of tbe president of tbe defendant corporation, who, it appeared from tbe record, bad no- personal knowledge thereof, and it was held that in tbe absence of an affidavit of merits to support tbe allegations of tbe defense there was no abuse of discretion in refusing to vacate a judgment taken by default. It will be seen from the above cases that either tbe answer as to tbe material allegations was upon information and belief or tbe material allegations of tbe affidavit of merits were upon information and belief only.

Plaintiff also claims the judgment should not be reversed because there is no showing that tbe verdict is contrary to tbe evidence or that there is any irregularity o-r error in the proceedings rendering the judgment void or inequitable. Where a duly verified answer upon personal knowledge has been interposed denying the material allegations of the complaint, and a judgment is taken by default against the defendant, a presumption arises from such verified answer and default that the defendant has been prejudiced, and no further proof of prejudice is needed. Presumably a judgment entered in a default case is supported by the evidence, and presumably no error or irregularity appears upon the record sufficient to invalidate it or to show that it is void or inequitable; but that does not in any way rebut the presumption that, under the circumstances stated, defendant was prejudiced by the entry of the default judgment. It will be presumed that a defendant has some competent and material evidence to offer on the issues raised by his verified answer. Erom what has been said it follows that the trial court should have granted the motion for a new trial upon proper terms.

In imposing such terms trial courts may, in their discretion, allow, in addition to all taxable costs, a reasonable sum for the services of the attorney in taking the default judgment, and such other sum or sums of money as were reasonably and necessarily incurred in procuring it.

By the Court. — Judgment reversed, and cause remanded with directions to enter an order granting a new trial upon such terms as may be just.