15 Wis. 474 | Wis. | 1862
By the Court,
Appeal from an order denying defendant’s motion to set aside a judgment.
In March, 1857, Pratt & Brown entered into a written contract witb tbe defendant to erect a building known as tbe High School building of tbe city of Janesville, and commenced its construction. In October, 1858, Brown assigned bis interest in the contract to Pratt, who thenceforth prosecuted tbe work alone. In 1859, disputes having arisen between Pratt and tbe city, it was mutually agreed that tbe building and all tbe materials furnished- for its construction should be surrendered to tbe latter, tbe contract cancelled and all differences submitted to tbe determination of an arbitrator named.
Tbe arbitrator, in an award published in September, 1859, found that tbe city was indebted to Pratt in tbe sum of $4,452 ; one thousand dollars of which tbe city was authorized to retain “ as an indemnity or security against loss arising -from or growing out of any lien” which bad theretofore been filed against tbe building. This indebtedness having been reduced by payments to about $1150, Pratt, in December, 1859, assigned tbe award, witb tbe balance due thereon, to tbe present plaintiff. It was for tbe balance thus due, that this action was instituted. It was commenced in May, 1860, and final judgment rendered against tbe defendant, upon demurrer to tbe answer, for $1179.94 debt, besides costs, on tbe 7th of July following.
At tbe time of tbe arbitration, an action was pending in favor of one Edwards against Pratt & Brown and tbe city,
Afterwards, in June, 1861, this motion was made. It is founded upon affidavits, the papers in this case showing the award, and those in the case of Edwards exhibiting the proceedings bad in this and the circuit court. Tbe record is long and diffuse, but the foregoing are believed to be all the facts necessary to a proper understanding of the question of law presented.
The merits are plain enough. They proceed from the fact that if both judgments are to stand, the city is bound to a double payment of upwards of one thousand dollars of the sum awarded to Pratt. The injustice of this is very obvious, but the view we have taken precludes an inquiry into the substantial rights of the parties, further than to ascertain whether the same relief could have been granted upon the answer which was held bad on demurrer. If it could, then it is clear that this is but a proceeding to review the ques
According to tbe doctrine intimated in Edwards vs. Janesville, tbis cannot be done. Except in cases of mistake, inadvertence, surprise or excusable neglect, mentioned in tbe statute, where relief may be granted witbin one year after notice, we know of no law, statute or common, authorizing tbe court, upon motion, after tbe term at which it was entered, to vacate a judgment for error in law or fact committed in rendering it, or occurring before it was pronounced. If such a practice were tolerated, no one knows where it would end. Parties would never be secure in their rights, and judgments would be of as little account as the course of the wind. “ It is plain,” says Judge Story, in Albers vs. Whitney, 1 Story’s R., 312, “that, at the common law, no judgment was amendable after the term at which it was entered. And amendments could be made in the process, pleadifigs and proceedings only while the cause stood in paper and before judgment. The authority to amend, then, even in England, in cases of this sort, is dependent upon and limited by statute. Mr. Tidd, in his excellent work on Practice, has laid this down as the clear doctrine of the courts, in all cases of ordinary suits (excluding fines and recoveries) in the English courts of justice. Judgments and records are there never allowed to be amended, except, in the first place, where the case is within the reach of some statute; or, in the next place, where there is something to amend by, that is, where there is some memorial, paper or other minute of the transactions in the case,' from which what actually took place in the prior proceedings can be clearly ascertained and known.” 1 Tidd’s Prac., 711, et seq. “We doubt whether a judge can alter a judgment after the close of the term, where there is nothing to amend by, and he assumes to do it on the ground that the judgment, as entered, does not express the intention of his mind at the • time it was entered. This would enable the courts to carry their records about the country in their heads, in rather too concealed a manner.” Boyd vs. Blaisdell, 15 Ind. R., 75.
If, as insisted .by counsel, the reversal of the Edwards order could be regarded as matter arising after judgment, of which the city could not have availed itself by answer, the question presented would be quite different. In former times this might have constituted sufficient ground for relief by audita querela, but of late it seems that the same redress is afforded by motion. “ In cases where the defendant has had no opportunity to plead, as where the original debt or demand was satisfied, released or discharged between the verdict and the judgment, the judgment will either be set aside or a perpetual stay of proceedings will be ordered, as the circumstances of the case may require. And where some matter arises after judgment, which should preclude the plaintiff from having execution, a perpetual stay of pro
Order affirmed.