Nye v. Sochor

92 Wis. 40 | Wis. | 1896

PiNNBY, J.

1. It is well settled that in order to maintain an action to enjoin or set aside a judgment rendered in an action in which there.was a good defense at law, known to the defendant at the time it was rendered, it must satisfactorily appear that the defendant was prevented from making his defense by fraud, mistake, accident, or surprise, unmixed with laches or negligence on his part. If he could have defended himself at law, but allowed judgment to go against him by his own neglect, he cannot have relief for a matter of which he might have availed himself at law. Wright v. Eaton, 7 Wis. 595; Stowell v. Eldred, 26 Wis. 504; Barber v. Rukeyser, 39 Wis. 590; Duncan v. Lyon, 3 Johns. Ch. 356; Floyd v. Jayne, 6 Johns. Ch. 419; Kibbe v. Benson, 17 Wall. 625. As was said by Bronson, J., in Norton v. Woods, 22 Wend. 525, “Independent of ail authority, it will never do to permit a party to appeal to chancery for a new trial when he has neglected the proper opportunity and the appropriate means to make his defense at law.”

It may be conceded that the allegations of the complaint show that the judgment of the justice’s court was inequitable, and that the plaintiff had no cause of action against the plaintiffs in the present case; but it is impossible, and inconsistent with well-established principles, to say that the case made by the complaint affords any ground for relief. It is not sufficient to show that injustice has been done, but it must appear that it has been done under circumstances, which authorize a court of equity to interfere, for “ the inattention of parties'in a court of law can scarcely be made a subject of interference of a court of equity.” 2 Story, Eq-Jur. § 896. Equity will never interfere where a party under no disability neglects to make his defense at law. Miller v. Morse, 23 Mich. 368. The plaintiffs were not prevented by fraud, accident, surprise, or mistake from availing themselves of their defense to the action, unless sheer forgetfulness can be called such, within the sense of the rule,— a proposition which we think cannot be maintained. We have not been referred to any authority holding that relief can be had in equity against a judgment at law on the ground that the party against whom it was rendered simply forgot to appear and make his defense at the time appointed for trial, or because he forgot to appeal from the judgment within the time prescribed by law.

The plaintiffs’ contention is that one of them (lush) had entire charge of their litigation, and that his forgetfulness was excused by the particular circumstances of the case, and that a prudent and careful man might make the same mistake that was made in this case. It does not appear that there was any erroneous mental conception on the part of ImsIí, or either of the plaintiffs, influencing them to act or to omit to act. There was no error in action, opinion, or judgment; no misconception, misapprehension, or misunderstanding. Mistake differs, in the legal sense, from accident, in that it presupposes the action of the will, while in the latter case no such action is implied; but in either case, in the legal sense, it is essential to relief that the event or occurrence was not the result of personal negligence or misconduct. It is not claimed that the circumstances were such as to deprive of memory, or mentally disable or unfit either of the plaintiffs to transact their ordinary business during the twenty days allowed for appeal. So far as it appears, they were capable of appropriating and bestowing their time as they chose. Failure to remember, entire forgetfulness to act as duty or interest requires, is so closely allied to laches ■or negligence that it is difficult, if not impossible, in a case like the present, to distinguish between them. Indeed, “ forgetfulness ” is defined as negligence,— careless omission. Cent. Diet. The case of Hurd v. Hall, 12 Wis. 126, and similar cases, go upon the ground of mistake of fact. The plaintiff Lusk failed to get to the station in time to take the train for the place of trial, to defend the action; and that fact, of itself, was calculated to admonish the plaintiffs of the necessity of being prompt and diligent in perfecting an appeal from the judgment which they had every reason to believe had been rendered against them that day. They suffered the necessity of appealing to pass wholly from their minds, and “ utterly forgot all about said action or their duty to take the necessary steps to take an appeal,” until the 8th of August, 1894, when it was too late. From the time the plaintiff Lusk missed the train until the sheriff made the levy, they had not made any inquiry, or indulged in a thought,— as the allegations of the complaint, in substance, sho'w,— as to what had been done in the action, or whether judgment had been given against them or not. The fact that they forgot, even under the circumstances stated, to appeal from the judgment, must be regarded as their misfortune, and not as affording any foundation for equitable relief against the judgment.

2. It was contended that there was fraud in the recovery of the judgment, because the plaintiff, as a witness in his own behalf, in testifying to the facts constituting his alleged cause of action, made no mention of the chattel mortgage’ and seizure of the property in question under it for nonpayment of the debt secured by it. It cannot be said that he-testified falsely or did anything to impose upon or mislead1 the court. These facts were no part of his case, and he was under no obligation to bring forward the alleged justification of the taking and conversion of the property. If he-had been interrogated on the subject, and had testified falsely, the case would have been within Stowell v. Eldred, 26 Wis. 507, relied on by the plaintiffs. The plaintiffs knew the facts, and it was solely their fault that they were not brought forward. The case of Tucker v. Whittlesey, 74 Wis. 80, is therefore not in point, and for these reasons this contention fails.

The demurrer was rightly sustained.

By the Oowrt.— The order of the circuit court is affirmed.