46 Wis. 356 | Wis. | 1879
This is an appeal from an order setting aside a judgment against the defendants and granting a new trial. The record shows that all the defendants appeared by attorney in the action and answered, but that they did not appear upon the trial and defend the same. The case was regularly noticed for trial for the December term, 1876, and tried, so far as it was tried at all, December 12, 1876. Judgment, it seems, was not perfected until February 1, 1877.
The record also shows that the defendant IAvvngston had notice of the judgment in the action as early as the first day
The record shows that the attorneys for the defendant Livingston, sometime in March, 1877, procured a stay of proceedings upon the judgment for sixty days, and afterwards another stay of thirty days; and that no motion to set aside
It is very clear'that the court made no order, either orally or in writing, vacating and setting aside the judgment, until after the expiration of more than one year after the defendant mating the motion had notice of such judgment. The record does not disclose that the delay in mating the order was occasioned by the request of the plaintiffs; and we must presume, therefore, that it was the act of the judge of the court, without the request of either party.
It is not claimed by the counsel for the defendant that the court had any power to make the order it did in the case, unless such power is given by sec. 38, ch. 125, R. S. 1858. The language of the section, so far as it is applicable to this question, is as follows: “ The court may also, in its discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding against him, through his mistake, inadvertence, or surprise, or excusable neglect.” The plain reading of the statute is, that the court may grant the relief indicated within one year after the party asking such relief has notice of the judgment, order or other proceeding against which he seeks such relief. The law is one which grants powers not before exercised by courts, and fixes a limit to the time within which such powers may be exercised.
It is the policy of the law to bring litigation to an end as speedily as possible, without doing injustice to the parties. And it is the interest of parties litigant that such policy should be adhered ,to, and enforced by the courts. The law above cited is sufficiently liberal in its provisions. It does not require a party to move until he has full notice of the wrong against which he seeks relief, and then gives him a full year to bring his case before the court and get his relief; and if he fails to do so, there would seem to be no just reason for complaint. It is argued that the party cannot compel a decision of his application, in case the judge should delay in giving it. This is not strictly so; a mandamus might perhaps compel a decision, if it were improperly delayed. But practically there is no difficulty in the matter. It is not to be presumed that any of the judges of the courts of the state would refuse to decide a question of this nature promptly, if they were desired to do so and were cognizant that any delay would prejudice the rights of the parties.
The parties can always, by proper diligence, bring the matter before the court for decision in such time that, in cases requiring great deliberation, the court will not be compelled to decide without proper deliberation in order , to save the rights of the applicant.
If the applicant will delay bringing his case before the court until the last day upon which the same can be heard and determined, he must take the risk of the court’s making a prompt disposition of the matter; and if, from the difficulties of the case, the judge presiding should decline to decide the same instanter, it is his own fault that his chance for relief is barred.
It is urged against holding that the relief under this statute
Upon a careful review and consideration of the cases of Butler et al. v. Mitchell et al., 15 Wis., 356, 17 Wis., 53; Know v. Clifford, 41 Wis., 458, and Whitney v. Karner, 44 Wis., 563, and in view of the plain and unequivocal language of the statute itself, we have concluded to approve the rule laid down in Knox v. Clifford and Whitney v. Karner, and hold, as it was held in those cases, that the motion for the relief asked under the provisions of sec. 38, ch. 125, R. S. 1858, and sec. 2832, R. S. 1878, must not only be made and brought to a hearing
It was suggested by the counsel for the respondents on the argument of this case, that the delay in making the decision upon the order to show cause was at the express request and for the benefit of the appellants, and that they should not, therefore, be permitted to take advantage of such delay, or be heard to allege that the decision was not made in time. This statement was denied by the attorney for the appellants, and there is nothing in the record which shows that the facts are as stated by the counsel for the respondents. "We are not called upon, therefore, to consider whether a party who had requested a delay in the decision of a motion to set aside a judgment under said section, until after the year had expired, would, upon an appeal from such decision, be permitted to allege, as a ground for reversing the same, that it was not made within the year.
By the Court. — The order of the circuit court is reversed.