Ray v. Northrup

55 Wis. 396 | Wis. | 1882

Taylor, J.

From the statement of the facts of the case it is evident that the appellant was guilty of laches in not putting in his defense in his original answer, and also in not moving promptly for relief after judgment was entered against him. - His only reason for delaying the matter is that he was informed by his father, the original mortgagee, that he would endeavor to arrange the matter with the respondent so that the foreclosure suit would not be pressed against him. This might have been some excuse for not defending the action, but it was no excuse for not moving promptly to set it aside after judgment was entered against him. It is also evident from the affidavits that the facts stated in the proposed amended answer were as well known to the appellant when he filed his original answer as they were when he proposed to file the amended one. That his original answer did not set out any facts constituting a defense to the action is now admitted, and it is a matter of very grave doubt whether the proposed amended one sets out facts constituting a defense. The answer admits that the mortgage and notes were valid as between himself and his father, the mortgagee, and that if he had not paid them to E. L. Northrup, as he claims to have done after they were assigned to the respondents, he would not have any defense to them in the hands of the respondents. He claims that having paid them to the mortgagee after they had been assigned to the respondents, and after they had acquired such an interest in them as would have entitled them to maintain an action upon them against the appellant, he has the right to defeat their action by such payment made without their knowledge or assent. The ground of this claim is that the contract by which the respondents claim title to the notes and mortgage is void as between the assignor, E. L. Northrup, and the respondents.

¥e think there are very grave doubts whether such payment made to the respondents’ assignor, after the assignee had acquired a right of action on the assigned notes and mortgage, as against the appellant, made without their knowledge or consent, can now be set np as a defense to their action. Armstrong v. Gibson, 31 Wis., 61; Knights v. Putnam, 3 Pick., 185. But if such payment can be set up as a defense, because the contract of assignment between the mortgagee and the respondents is illegal and void as between the assignor and assignee, the appellant has shown no excuse for not interposing it in proper time, except his reliance upon the promise of the assignor to settle the same, so as to prevent the further prosecution of the action. If the assignor has failed to prevent the respondents from obtaining a judgment against the appellant, he must look to him for any damages he may have suffered by reason of such judgment. A motion of this kind is, usually, very much in the discretion of the court to which it is addressed, and this court will not reverse an order of this kind unless the case presents strong grounds for holding that the discretion of the court to whom the motion is addressed was not justly and fairly exercised. See cases cited in the brief of the learned counsel for the respondents. .Ve think there was no abuse of discretion in refusing to set aside the judgment.

By the Court.— The order of the circuit court is affirmed, and the cause remanded for further proceedings.