182 Wis. 457 | Wis. | 1924
The trial court seems to have been of the opinion that the deed was. intended to provide for the payment of $55 annually during the life of both grantors and that the wife of the plaintiff had an equitable interest in this action, and hence a judgment against Joseph Kuchera could not be offset in an action where he and his wife were equitable partiés though not of record. We express no opinion as to whether the deed should be construed to require anpual payments during the life of Kuchera and his wife or only during his life. In the former case that question was not involved, and the court in its statement of facts, following the language of the parties, says payments were for the support of “plaintiff and his wife,” but the deed says “during the remainder of my life,” signed by Joseph Kuchera and Barbara Kuchera. But assuming it does, then the former actioff was one in which the wife had the* same equitable interest that she has in this action and the judgments for
Even if the trial court had been right in refusing to allow the counterclaims, the default of one day should not have visited upon the defendant the loss of a valuable farm. It is in evidence that she lived a considerable distance from the plaintiff; that the only feasible way to reach him was to travel by highways, and they were in bad condition. Under the circumstances we hold it was an abuse of judicial discretion to declare the judgment absolute for so trifling a default.
By the Court. — The judgment and order áre reversed, and the cause is remanded with directions to allow the coun - terclaims, to ascertain the amount due in addition thereto', and to give defendant thirty days in which to pay the same.
