Seymour v. Board of Supervisors

40 Wis. 62 | Wis. | 1876

Lyon, J.

It is quite immaterial to the determination of this appeal -whether the circuit court granted the plaintiff’s motion to amend the complaint and judgment, or not, or whether such amendment, if allowed, is regular or irregular, because, as this court has repeatedly held, the circuit court had no power to disturb the judgment at a subsequent term for any such cause. The only power which the circuit court had over the judgment, when the motion to set it aside was made, is given in sec. 38, eh. 125, R. S.; and unless the defendant brought itself within that statute, the motion was properly denied.

The granting or denying of. the order appealed from was a matter within the sound discretion of the circuit court; and, as was said by Mr. Justice Paine in McLaren v. Kehlor, 22 Wis., 300, “it requires a strong case for this court to overrule an order of this kind.” In the case before us, none of the motion papers gave the court the slightest information as to the specific nature of the defense to the causes of action denied in the proposed answer. All that the court could know from those papers was, that the defendant denied the liability of the county on some of the orders in suit; that the learned attorneys for the defendants, after having been fully and fairly informed of the case and defense, advised the proper county officer that such defense was a good, valid and substantial one; and that such officer believed the advice to be correct. The court was called upon to exercise a discretionary power in favor of the defendant; and it was entitled to know the specific grounds of defense relied upon, before granting the relief prayed. It is believed that the courts were so informed in all of the cases in which relief of the kind here sought has been granted. See Johnson v. Eldred, 13 Wis., 482; Butler v. Mitchell, 15 id., 355; Stafford v. McMillan, 25 id., 566. We cannot say, under the circumstances, that the denial of the motion in this case to vacate the judgment, was an abuse of discretion.

It does not appear on. what grounds the circuit court denied the motion. It may have been denied on the ground that the defendant did not show that its failure to appear and answer was the result of “ místate, inadvertence, surprise, or excusable neglect.” If the ruling went upon that ground alone, we should hesitate to say that the denial of the motion was an abuse of discretion; for we greatly doubt whether the defendant has satisfactorily excused its laches in the premises.

By the Cov/rt. — Order affirmed.