271 Wis. 484 | Wis. | 1956
Numerous are the reasons assigned by the defendants for setting aside the judgment and for the grant
In the case at bar the plaintiff in his complaint prayed for the recovery of the possession of the stock or for the sum of $30,349, the value thereof. The court granted judgment in the alternative for the delivery of the stock and for $14,898.24, damages for retention, or in case delivery cannot be had, then for $49,897.95, the value of the property, in addition to $14,898.24, damages for retention. The amount ordered to be paid under the terms of the judgment is considerably in excess of the money damages demanded in the complaint. Upon such basis alone the judgment cannot be permitted to stand.
Previous to the opening of the fall term, the court took under advisement both the application for default judgment and the motion to make the amended complaint more definite and certain. Although no satisfactory reason appears of record regarding the counsels’ action in extending the time to answer, nevertheless, in view of the agreement between the counsel that the defendants were privileged to interpose answer within such time that the case could be heard at the fall term and which was beyond the date at which the plaintiff initiated proceedings to obtain judgment by default, that arrangement was bound to be respected. Had the court promptly determined the motion to make the amended complaint more definite and certain, it is clear, that whether such motion had been granted or denied, with short-term leave granted to plead as provided in sec. 270.14, Stats., sufficient
In view of these conclusions we find no necessity for determining the other points raised by the defendants in their challenge of the validity of the judgment and the order.
By the Court. — Cause remanded with directions to set aside the judgment, render a determination with respect to the motion to make more definite and certain, afford opportunity of short leave to plead, and for further proceedings according to law. No costs are awarded to either party.