28 Wis. 257 | Wis. | 1871
The record shows that counsel for the plaintiffs in error, defendants below, appeared in open court and asked for a stay of proceedings to enable the defendants to
Tbe objection tbat no proof was made, upon tbe inquest or assessment, of tbe giving of notice and proofs of tbe fire and loss to tbe company, as required by tbe policy and averred in tbe complaint, is hypercritical and unfounded. There was such proof, quite sufficient upon tbe entry of judgment by default, where tbe failure to answer is an admission of tbe facts alleged in tbe complaint.
Tbe facts shown by tbe affidavits in excuse of tbe default and failure to answer, and as a reason for setting aside tbe judgment and letting tbe defendants in to a trial on tbe merits, are, in our judgment, insufficient. They show a case of inexcusable neglect and delay, and are in some respects inconsistent with good faith and fair dealing on tbe part of tbe defendants or theb agents. The loss occurred more than eight months before tbe action was commenced, and it was over three months after service of process when judgment by default was taken. In tbe meantime, both before and after the commencement of tbe action, negotiations were pending for a voluntary settlement and payment of the loss. The liability of tbe company was not seriously denied, and promises of payment were made as well on tbe part of the general agent of tbe company as of one or more of its special agents. The plaintiff was induced to believe tbat her claim bad been or would be allowed by tbe company, and payment made without objection. It furthermore appears tbat before tbe suit was commenced, and, tbe inference is, a considerable time before, tbe agents of the company — the local one at Eond du Lac, one of tbe general agents for tbe northwestern states at Chicago, and a special agent
On tbe whole, we are of opinion tbat no case was made out to justify tbe setting aside of tbe judgment, and tbat tbe order of tbe court below was right.
By ike Court. — Order affirmed.