Wawrzyniakowski v. Hoffman & Billings Manufacturing Co.

137 Wis. 629 | Wis. | 1909

. MaRShall, J.

It is plain from the statement that the stipulation authorized only a mere dismissal of the action and the first order was entered in exact conformity therewith. In terms and legal effect it terminated the action. The language thereof was that “the action be and is hereby dismissed without costs to either party.” That certainly ended the proceeding (2 Wait, Prac. 515), leaving nothing further for appellant’s attorney to do in regard thereto.

It follows that the subsequent proceedings were entirely unnecessary and outside of anything contemplated mutually by the parties, if not unwarranted. In any event, the action having been absolutely ended by the entry of the order, respondent was not bound by the person who acted as his attorney therein in receiving notice of the subsequent proceedings.

The termination of the litigation,, not by a closing thereof by judgment, which of'course might leave the attorney, for the time being at least, authorized to stand for respondent in .■any further proceedings upon the judgment, but by removing the litigation entirely from the court, ending it for all purposes, necessarily ended the authority of the attorney.

The question arises, in light of the foregoing, whether, at the time of the application for relief from the second order and the judgment based thereon, respondent was within the year period of sec. 2832, Stats. (1898), which provides that “the court or a judge may likewise, in discretion and upon .such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him, through his mistake, inadvertence, surprise or excusable neglect. . . .”

It is conceded that no notice of the proceedings complained ■of came to the knowledge of respondent till shoidly before the •application for relief therefrom was made, unless notice to the attorney was, in legal effect, notice to the party. Doubtless the statute contemplates such to be all the notice required to set the year period running so long as the attorney’s general authority in the action continues, and doubtless it continues in case of a dismissal, for the purpose of receiving .notice of the final order in that regard, hut does it continue for the purpose of still further and unnecessary proceedings; •such as could not have been reasonably within the contemplation of the parties, as the entry of a second and unnecessary -order, inconsistent with the one already entered and a judgment likewise unnecessary and inconsistent? If so, when does the authority end ? It seems there can be but one answer and that is that, in a case of this sort, the authority •cannot, without some understanding to that effect, survive the entry of the order of dismissal except for the purposes thereof, i. e. for receiving notice of the entry; hence that when the person who represented respondent received notice •of the second and wholly unauthorized order and judgment he was without authority in the matter and service upon him was not notice to respondent.

The rule in reason and by authority is that when the attorney ceases to be such for a party before receiving notice of an adverse proceeding, the year period mentioned in the statute does not commence to run till the party, himself, has notice. Robbins v. Kountz, 44 Wis. 558. So held in that •case, where relief was sought under the statute and was •granted because, though the person who had been the attorney for the party, but, as the court said, had practically ceased to be such, received notice within the year period, the party, himself, had not received such notice.

So the decision must be that the motion in this case was timely. That solves the question of power to make the order ■appealed from. Whether the power was wisely exercised or not involves mere matter of discretion, and we see no ground for holding there was an abuse of authority in that regard. Indeed, we do not understand appellant’s counsel contend to the contrary. They rest the appeal upon the ground of want of power, under the statute, and absence ^of circumstances-rendering the rule applicable, that a court may, regardless of mere lapse of time, correct an order or judgment so as to make the same harmonize with the actual judicial determination made and pronounced. The order in question might-have been made broader so as to have set aside the second order of dismissal and the judgment entirely. But the act of merely making the same conform to the first and only authorized order was tantamount to expunging them altogether.

By the Court. — The order is affirmed.