152 Wis. 399 | Wis. | 1913
The effect of the steps taken by the defendant in moving for a vacation of the judgment on the motion made June 6, 1911, was correctly determined by the cir
Tbe defendant appeals from tbe judgment and contends tbat it should be reversed upon tbe ground tbat tbe clerk of tbe circuit court .awarded judgment in defiance of tbe provisions of sec. 2891, Stats., wbicb provides tbat “Judgment may be bad if tbe defendant fail to answer tbe complaint . . . (1) In any action arising on contract for tbe recovery of money only . . .” upon proper proof of due service and defendant’s failure to answer or demur in tbe action. An inspection of tbe plaintiff’s complaint shows clearly tbat she has alleged no cause of action “arising on contract for tbe recovery of money only,” and bence tbe clerk bad no authority, under the power conferred on him by tbis statute, to enter judgment in tbe action upon a showing tbat tbe defendant bad not demurred to or answered tbe complaint. .The allegations of tbe complaint constitute in substance a claim for damages resulting from defendant’s illegal taking and converting to bis own use plaintiff’s personal property and for a failure to specifically perform .an agreement for tbe transfer of a lease, and are in no sense actions “arising on contract for tbe recovery of money only.” Tbe causes of action alleged are in tort, in tbe nature of trover for a conversion of property, and a claim for damages resulting from a breach of an agreement in failing to transfer a lease, and for misrepresentation as to tbe amount paid on tbe rent reserved therein. It is manifest from tbe context of sec. 2891 tbat no power is conferred on tbe clerk to enter judgment for tbe amount demanded in tbe complaint in this action, and
Since the judgment must be vacated and since it appears that the appellant, through reliance on the mistakes of his counsel, neglected to take the proper steps in due time to obtain relief from his default in appearing and answering in the matter, he is entitled, upon the records and proceedings, upon the motion made February 21, 1912, to be relieved against his default in not answering and to be permitted to interpose the proposed answer in the action. Wicke v. Lake, 21 Wis. 410; Bloor v. Smith, 112 Wis. 340, 87 N. W. 870.
The judgment appealed from must be reversed, and the cause remanded to the circuit court with directions to vacate the same as null and void. Of the two orders appealed from, the one entered June 17, 1911, must be affirmed, and the one entered March 11, 1912, must be reversed, and the court should enter an order to open defendant’s default for failure to answer the complaint and permit him to interpose the proposed answer to the complaint, upon such terms as the court may deem just.
By the Court. — It is so ordered.
