Pinger v. Vanclick

36 Wis. 141 | Wis. | 1874

Lyon, J.

The circuit court has no authority to review, on

the merits, orders or judgments made or rendered at a former term, for the purpose of correcting its own errors. This is well settled. Ætna Life Ins. Co. v. McCormick, 20 Wis., 265; Durning v. Burkhardt, 34 id., 585. Hence, on the motion to reinstate the appeal (which was equivalent to a motion to vacate the order of the former term dismissing it), the circuit court had no authority to determine whether such order of dismissal was or was not properly made. It is urged that such order was made prematurely. But inasmuch as the circuit court could not properly determine that question on the motion to reinstate, this court cannot determine it on an appeal from an order denying such motion. That question can only be presented to this court by an appeal from the order or judgment dismissing the appeal below.

The case of Howe v. Elliott, 24 Wis., 677, is not authority to the contrary. That was also an appeal from an order of the circuit court denying a motion to reinstate an appeal from the judgment of a justice, which had been.dismissed; and it is true that the language of the opinion is, that the motion to reinstate “ should have received the same consideration that the facts would have been entitled to if presented at the time the appeal was dismissed.” But the reason assigned therefor is, that no notice of the motion to dismiss was given. Furthermore, it satisfactorily appears from the report of the case, that the order to dismiss the appeal, and the motion to reinstate it, were made at the same term. In the present case there was an appearance by the defendant to the motion to dismiss, which renders the want of notice of the motion entirely unimportant, and the motion to reinstate was made at a subsequent term. These facts (and particularly the latter) make it necessary to apply other and different rules in the determination of the present case. Neither is the case of Webster v. School District, 16 Wis., 316, applicable. It was there said that a motion to dismiss the appeal for want of prosecution made during the second term after it was taken, was premature. But the cause had been noticed for trial by the respondent. It was held competent for the appellant to move it for trial under such notice, at that term, and that consequently laches could not be imputed to him when the motion was made, nor at any time before the adjournment of the term.

If the circuit court had power to reinstate the appeal, it must be found, we think, in sec. 38, ch. 125, R. S. (Tay. Stats., 1446, § 42), which confers upon that court power in its discretion to relieve from judgments or orders against the moving party, obtained through, or by means of, his mistake, inadvertence, surprise or excusable neglect.

However satisfactorily the default of the defendant in failing to notice the cause for trial may be excused, it would be an abuse of discretion to reinstate the appeal unless it be made to appear that the appellant has a valid defense to the action in whole or in part. But we fail to find here any sufficient affidavit of merits. It does not appear that the appellant stated the whole case to his attorney, or that the statement he made was true. The averment that the attorney and affiant examined the testimony taken before the justice, does not cure those vital omissions. Hence the record fails to show any sufficient grounds for the belief, sworn to by his attorney, that the defendant has a valid defense to the action.

An affidavit like that under consideration may be sufficient to authorize an extension of time to answer or demur by virtue of circuit court rule 17 (Tay. Stats., 2015); but after the party is actually in default, the rule is, that the power of the court will not be exerted to relieve him unless he shows merits. See Mowry v. Hill, 11 Wis., 146; Burnham v. Smith, id., 258; Johnson v. Eldred, 13 id., 482; Buller v. Mitchell, 15 id., 355. In the case of Howe v. Elliott, supra, there was a sufficient affidavit of merits. So also in Wilcox v. Holmes, 20 Wis., 307.

Hence, although it be conceded that the appellant excused his failure to notice the cause for trial, yet his failure to show that he has a meritorious defense to the action, in whole or in part, is fatal to his motion to reinstate the appeal.

By the Court. — Order affirmed.