Stoll v. Pearl

122 Wis. 619 | Wis. | 1904

Tbe following opinion was filed June 10, 1904:

Maeshall, J.

Tbe application for relief from tbe judgment was made under sec. 2832, Stats. 1898. It was addressed to tbe sound discretion of tbe trial court. Upon familiar principles tbe result in such court is beyond tbe reach of this court except to remedy a clear abuse of judicial authority. Kalckhoff v. Zoehrlaut, 43 Wis. 374; Seymour v. Chippewa Co. 40 Wis. 62; Milwaukee M. L. & B. Soc. v. Jagodzinski, 84 Wis. 35, 41, 54 N. W. 102; Smith v. Wilson, 87 Wis. 14, 18, 57 N. W. 1115 ; Pfister v. Smith, 95 Wis. 51, 54, 69 N. W. 984. It has often been stated here that under such rule a strong affirmative showing must be made indicating beyond reasonable controversy inexcusable judicial action in order to warrant this court in condemning it. Testing tbe record before us by that, we are unable to bold tbe order complained of to be wrong. It probably seemed to tbe trial court that by a long series of mistakes so much useless and expensive litigation bad occurred to vindicate tbe rights of tbe creditors of John Pearl in tbe property in controversy, that if tbe way were open for its recovery, so far as regards tbe judgment in question, there would be very little of it that could reach Ihem; that so much time of tbe courts bad been uselessly occupied witb tbe matter, counsel experimenting first witb one remedy and then witb another, that after plaintiff’s allowing, this cause to go by default when it might have been discontinued so as not to interfere with litigating the questions involved in the equitable action, and then taking some ten months to. find out the mistake of failing to do so, and in the meantime, oblivious of such mistake, pursuing a course causing much useless expense to the defendants and the public,— justice to all concerned demanded that the relief asked for should be denied and that the controversy, so far as closed by the judgment in question, should remain forever closed. We are inclined to agree with that view.

By the Gourt. — The order is affirmed.

The appellant moved for a rehearing.

The following opinion was filed October 18, 1904:

Cassoday, C. J.

In June last this court affirmed the order-of the trial court refusing to set aside a judgment of that court entered upon default, on the ground that it had not been made to appear that there had been any abuse of discretion in refusing the application. The facts upon which such order was based were quite numerous, and are there stated at length and in detail, but the opinion itself is quite short. Counsel for the plaintiff filed a motion for a rehearing, and has submitted what purports to be a printed argument of fifty-one pages in support of his motion. Much of it is a reiteration of what had been fully considered. No principle of law mentioned in the opinion filed has been challenged. The only misstatement of fact pointed out consists in stating that the second application for a change of venue was made by the plaintiff’s counsel, whereas it was in fact made on behalf of the defendants. That occurred early in the proceedings, and was stated merely as a part of the detailed history of the case, but was without any controlling significance as bearing upon the-question decided. Of course, the mere fact that the trial court, or this court, drew from the record inferences or conclusions which differed from those of counsel, cannot be regarded as misstatements of fact. There is nothing in the lengthy “brief” submitted, requiring an answer; much less .a rehearing.

It is apparent from the brief itself that it was not made for the purpose of securing a rehearing, but merely as an excuse for insulting this court and impugning its motives. This is obvious from the fact that several pages of the brief are devoted to the supposed wrongs which have been inflicted upon the counsel or his clients in other cases, with the admission that such “diversion” “has no bearing upon the point under discussion.” Tor twenty-six years a rule of this court — written by Chief Justice Eyas — has prohibited the printing of “any brief disrespectful to this court, or any member of it, or to the court below, or to opposing counsel.” Supreme Court Hule XXVII. A wilful disregard of this rule by one who has been admitted to the bar of this court is not only unprofessional, but a contempt of court. The brief in question is a gross violation of that rule. If counsel for the plaintiff expects to continue practice in this court, it will be necessary hereafter for him to comply with this rule of the court. Xo such scurrilous document will be allowed to incumber the records of this court. The rule requires any such brief to be stricken from the files of this court.

By the Court. — It is ordered that the brief of counsel for the plaintiff on the motion for a rehearing be, and the same is hereby, stricken from the files of this court, with $25 costs, to be paid by the plaintiff to the attorney of the defendants for such imposition upon him and the court; and it is hereby further ordered that the motion for a rehearing be, and the same is hereby, denied, with $25 costs, as prescribed by statute (sec. 2950, Stats. 1898).