McDonald v. Falvey
18 Wis. 571
Wis.
1864
Check Treatment

By the Court,

Dixoír, 0. J.

The amount involved in this motion is considerable. It is upwards of $1000, and more than three fourths of the sum for which the judgment was originally entered. The proofs are the most conflicting. It is affidavit against affidavit, and oath against oath. We are satisfied that it is not a case which should be finally determined upon the affidavits. It should be left to the ordinary mode established for the trial of contested questions of fact. An issue should have been made, and the facts submitted to a jury. Upon the affidavits presented, with no opportunity of seeing the witnesses or hearing them testify, and with no cross-examination, no court can decide with any degree of satisfaction to itself, or with much likelihood of doing justice between the parties. Certainly we cannot, and, upon looking into the books, we find our impressions as to the practice greatly strengthened by the authorities,

The practice of granting relief in cases of this nature by summary application upon motion, may now be considered as thoroughly established. Spafford v. Janesville, 15 Wis., 475, and Cooley v. Gregory, 16 Wis., 303, and eases cited. A motion is now the proper remedy in all cases where audita querela was formerly used. Like many other proceedings familiar to modern practice, this remedy by motion is the result of a gradual progress. It has grown up little by little. At first, the motion was not entertained where the facts were disputed. In such cases the party was turned over to his remedy by audita quer-*574ela, when, tbe facts could be regularly tried. Accordingly we find Lord Holt, in tbe early case of Wicket v. Creamer, 1 Salk., 264 (S. C., 1 Ld. Raym., 439), bolding that tbe court would relieve a party upon motion, unless tbe ground of bis application was a release or some such matter of fact as was proper to be tried. The same rule was applied in an early case in New York. Wardell v. Eden, 2 Johnson’s Cases, 258. And since tbe motion has taken the place of tbe audita querela altogether, it would seem that tbe same mode of trial ought still to prevail; and such we find to be the practice. An issue is made, and sent to the jury to be tried, like other issues of fact. In Lister v. Mundell, cited in Cooley v. Gregory, supra, such an issue was ordered. And in Horner & McCann v. Hower, 39 Pa. St., 126, an order of the common pleas directing a judgment to be satisfied, was reversed because the facts upon which the application was made were doubtful, and the court of common pleas should have directed an issue, instead of proceeding to order the j udgment discharged upon affidavits. In Baker v. Ridgway, 2 Bing., 41 (9 E. C. L., 311), the very question here presented was determined. The court held that it would not decide between contradictory affidavits, but would order tbe contested fact to be ascertained by a jury. Everett v. Knapp, 6 Johns., 331, is a case where the court thought the charge so directly made out by the affidavits, and the counter-affidavits so equivocal and evasive, that an issue was unnecessary. In Lansing v. Foot, 16 Johns., 4, the defendant moved for an order for a perpetual stay of execution, which was denied on the ground that the parties interested were so numerous and the facts so complex, that the court could not do justice to all concerned. A stay of proceedings for three months was ordered, that the parties might make their application in chancery, though the jurisdiction of the court to grant the relief is ex pressly affirmed. In Frink v. Morrison, 13 Abb. Pr. R., 80, the court refused to set aside a judgment, on motion of one having a subsequent lien, upon the ground that it had been *575satisfied. The evidence was conflicting, and it was held that the person having the lien, who in that case was a mortgagee must resort to his action. Watts & Joiner v. Norton, R. M. Charlton, 353, is to the effect that if the court requires information of matters of fact, it will cause an issue to be made up for that purpose. These citations sufficiently illustrate what the practice is and ought to be in cases like this, and show how uniformly the courts have refused to decide disputed questions of fact upon mere ex parte affidavits.

The order must therefore be reversed, and the cause remanded with directions that the plaintiff file and serve her complaint, and the defendant his answer, and that the parties proceed to trial as in other cases.