Whereatt v. Ellis

| Wis. | Feb 1, 1887

The following, opinion was filed November 23, 1886:

Cassoday, J.

The facts disclose no lack of vigorous contention. The cause has been pending for nearly four years without any trial being had upon the merits. This is the fourth time we have been called upon to determine some question of practice. But every party may, in the forms prescribed by law, insist upon what he conceives to be his strict legal rights. Courts can do no less than to patiently listen, carefully consider, and then determine according to the law and the facts.

1. The difficulty here apparently grows out of a misconception or inadvertence in relation to the order of July 2, 1885, and the effect of the appeal from it. A copy of that order was served on the defendant’s attorney, July 13,1885. That order in terms authorized the defendant to escape from its provisions by paying the .costs of motion within ten days from the time of such service, and also, within that time, giving the plaintiff’s attorney ten days’ notice, in writing, of his willingness to submit to an examination before the commissioner, at a time to be fixed by the defendant, within twenty days from the time of the service of such copy. July 20,1885, the time limited for the payment of such costs and giving such notice of submission was extended, by stipulation, to and including July 27,1885. The appeal taken July 24, 1885, from the order of July 2, 1885, accompanied by an undertaking as required by sec. 3052, R. S., and ch. 49, Laws of 1883, did'not operate as a stay of proceedings upon the order appealed from. The statutes expressly declare that, “ when the appeal is from an order, the execution or performance thereof shall not he delayed, except upon compliance with such conditions as the court or the presiding judge thereof shall direct.” Sec. 3060, R. S.; ch. 49, Laws of 1883. No such direction was given by the trial court or the presiding judge thereof. On the contrary, the trial judge expressly refused to fix the amount of any undertaking under that section, or stay proceedings on the order. Accordingly the time for paying such costs and giving such notice expired July 27, 1885.

July 28, 1885, a justice of this court granted a-temporary stay, which this court subsequently made permanent, pend-' ing the appeal. This was, in effect, holding that the trial judge improperly refused to grant such stay. Nevertheless, it was a fact that no stay was granted until July 28, 1885, before which day the defendant’s time for paying such costs and giving such notice of a willingness to submit to the terms of the order had expired by. limitation. The result was that the defendant had, technically, lost the right of compliance with the conditions of 'that order before any stay thereon was granted. That stay was only during the pendency of the appeal, and necessarily terminated upon the filing of the remittitur. It in no 'way enlarged the time for compliance with the conditions of the order. This court, on that appeal, might possibly have imposed conditions upon such affirmance allowing the defendant further time for compliance. But whether it might or not is immaterial here, since it was not requested nor done, and the matter has become res adjudioata. These things being so, •and the order of July 2, 1S85, having in all respects been •affirmed by this court (65 Wis. 639" court="Wis." date_filed="1886-04-06" href="https://app.midpage.ai/document/whereatt-v-ellis-6605145?utm_source=webapp" opinion_id="6605145">65 Wis. 639), it necessarily follows ■that upon filing the remittitur the order stood the same as though no appeal had ever been taken therefrom. The result is that, immediately upon the record being returned to the trial court, the plaintiff was technically entitled, as a matter of legal right, to judgment as upon default, in pursuance of the mandate of the order. Nor was it necessary to give notice to the defendant of such intended application for judgment, since the order for judgment had been made by the court after notice and hearing of the defendant. Whatever may be the rule elsewhere, under our practice there was no necessity for an additional order giving permission to execute the order which had already been made by the court.

2. Was the plaintiff, upon his complaint, entitled to the judgment which he did enter? The summons and complaint were personally served upon the defendant. The substance of the complaint was sufficiently stated on a former appeal. 58 Wis. 625" court="Wis." date_filed="1883-11-20" href="https://app.midpage.ai/document/whereatt-v-ellis-6604205?utm_source=webapp" opinion_id="6604205">58 Wis. 625. It was verified, and alleged a cause of action arising on contract for the recovery of money only, within the meaning of subd. 1, sec. 2891, R. S., as it has frequently been construed by this court. Schobacher v. Germantown Farmers' Mut. Ins. Co. 59 Wis. 90-92, and cases there cited. This being so, it was a proper case for entering judgment, as upon default, with the clerk. Besides, as indicated, there was an unexecuted order for judgment made by the court upon due notice and hearing.

3. Although the damages were unliquidated, yet the plaintiff was clearly entitled to interest on the amount due him from the time of the commencement of the action. Was he precluded from recovering such interest by his omission to pray specifically for the same in his complaint? The relief granted as upon a default cannot exceed that which is demanded in the complaint. Sec. 2886, R. S.; Zwickey v. Haney, 63 Wis. 464" court="Wis." date_filed="1885-06-01" href="https://app.midpage.ai/document/zwickey-v-haney-6604788?utm_source=webapp" opinion_id="6604788">63 Wis. 464; Edleman v. Kidd, 65 Wis. 25. But the demand for judgment was for the amount due at the commencement of the áction. If the plaintiff was entitled to the amount claimed as of that date, then he was entitled to interest thereon, as a matter of law, and hence •it was unnecessary to allege the same as a fact. The complaint, therefore, apprised the defendant of the amount of the plaintiff’s claim, and thereby secured the purposes of that section. Had the judgment included interest prior to the commencement of the action, and been entered upon an ordinary default, it would have been error. But this is different, since the interest included in the judgment accrued after the commencement of the action. This seems to be permissible. Haven v. Baldwin, 5 Iowa, 505. Besides, although the judgment is entered “ as upon default,” still it can hardly be regarded as a case without an answer, within the meaning of sec. 2886; for that contemplates a right of reliance, on the part of the defendant, that judgment will not be taken for an amount exceeding that which is demanded in the complaint. Here there certainly was no misplaced confidence in that. regard. Manifestly, there should be no reversal in a case like this, where the judgment does not exceed the amount to which the plaintiff is legally entitled upon the facts stated in the complaint, as nb substantial right of the defendant is thereby affected. Sec. 2829, R. S. See, also, Hodge v. Sawyer, 34 Wis. 397" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/hodge-v-sawyer-6601443?utm_source=webapp" opinion_id="6601443">34 Wis. 397.

4. The judgment having been regularly entered, the defendant could only have it opened as a matter of favor, and upon a proper application. Here the application was granted upon the conditions named in the statement of facts, the substantial portions of which were that the de-fendantlshould pay $10 each for three motions, including the one mentioned in the order of July 2,1885, and submit to an examination as therein provided, and other things, some of which were at the request of the defendant It is to be remembered that the statutes make the granting of such motion a matter of discretion with the trial court, and upon such terms as may be just. Sec. 2S32, R. S. This court has frequently held that it will not interfere in such case unless there has be.en a manifest abuse of discretion. Smith v. Smith, 51 Wis. 668; Ray v. Northrup, 55 Wis. 396" court="Wis." date_filed="1882-09-19" href="https://app.midpage.ai/document/ray-v-northrup-6603842?utm_source=webapp" opinion_id="6603842">55 Wis. 396; Union Nat. Bank v. Benjamin, 61 Wis. 514; Jefferson Co. Bank v. Rollins, 67 Wis. 68" court="Wis." date_filed="1886-11-03" href="https://app.midpage.ai/document/jefferson-county-bank-v-robbins-6605313?utm_source=webapp" opinion_id="6605313">67 Wis. 68. Here we discover no such abuse in making the order of June 17, 1886. On the contrary, we think the terms imposed were reasonable.

5. An appeal will not lie from an order made by a judge at chambers. Hubbell v. McCourt, 44 Wis. 584" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/hubbell-v-mccourt-6602572?utm_source=webapp" opinion_id="6602572">44 Wis. 584; Bunn v. Valley L. Co. 63 Wis. 630" court="Wis." date_filed="1885-09-22" href="https://app.midpage.ai/document/bunn-v-valley-lumber-co-6604802?utm_source=webapp" opinion_id="6604802">63 Wis. 630. The order of June 23, 1886, was such an order, and no action of the court was taken thereon, and consequently it was not appealable.

By the Gourt.— The judgment of the circuit court is affirmed. That portion of the order of the circuit court made June 17,1886, appealed from, is affirmed. The appeal from the order made by the judge at chambers June 23, 1886, is dismissed. The cause is remanded for further proceedings according, to law-

Upon a motion for a rehearing it was contended, on behalf of the appellant: 1. No judgment in the action could be rendered upon the conditional order, except on motion to the court showing that the condition had not been complied with. Sawyer v. Farmers' & M. Bank, 7 Wis. 386" court="Wis." date_filed="1859-01-15" href="https://app.midpage.ai/document/sawyer-v-farmers--millers-bank-6597702?utm_source=webapp" opinion_id="6597702">7 Wis. 386. 2. Notice of the assessment of damages was necessary. Douville v. Merrick, 25 Wis. 688" court="Wis." date_filed="1870-01-15" href="https://app.midpage.ai/document/douville-v-merrick-6600433?utm_source=webapp" opinion_id="6600433">25 Wis. 688. The decision of this court upon the appeal from the order was in fact a new trial and decision of the question involved upon the appeal, and its judgment or decision was a new order or decision to take effect from the time of its being remitted to the court below. Therefore the defendant had the full time granted by that order, the same as if no appeal had been taken and this was the first order made in the premises. Butler v. Mitchell, 15 Wis. 360; State v. Hœflinger, 33 id. 594.

The following opinion was filed .February 1, 1887:

Cassoday, J.

A careful reading of the briefs on motion for a rehearing fails to disclose any substantial rqason for opening any of the questions determined in the opinion filed. In considering the effect in this court of the affirmance of a prior order on a former appeal, the writer there said on his own responsibility, and without any authority from the court, that “this court, on that appeal, might possibly have imposed conditions upon such affirmance allowing the defendant further time for compliance. But whether it might or not is immaterial here, since it was not requested nor done, and the matter has become res adjudi-cata. These things being so, and the order of July 2, 1885, having in all respects been affirmed by this court, it necessarily follows that upon filing the remittitur the order stood the same as though no appeal had ever been taken therefrom.” The order of June 17, 1886, here appealed from, was “ upon the condition that the defendant should, on or before June 22,1886, pay to the plaintiff’s attorney,” in the aggregate, $30 costs, and also “ upon the further condition that the defendant appear and attend before said commissioner at his office in Eau Claire, June 28, 1886, at 9 a. m., and from day to day thereafter as He,might be lawfully required until his examination should be completed, and then and there be examined,” etc. The appeal from that order was not taken until June 25, 1886, which was three days after the time expired for the payment of such costs. We are now asked to give to the defendant the right to comply with its conditions, notwithstanding the time for such compliance had in part expired prior to such appeal. A similar question maj*- arise whenever an appeal is not taken from an order overruling or sustaining a demurrer until after the time allowed therein for answering or amending has expired. Can this court grant such relief, upon an af-firmance of such order? It was said by the late chief justice that “ there is neither statute to authorize nor practice to sanction a discretion for a new trial upon affirmance. Such a discretion would virtually convert affirmance into reversal.” Stevens v. Sup’rs Clark Co. 43 Wis. 41" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/meng-v-winkleman-6602375?utm_source=webapp" opinion_id="6602375">43 Wis. 41.

The real objection to this court granting such relief is the fact that in such matters it exercises “ an appellate jurisdiction only.” Sec. 2405, R. S. The statute prescribes that the court may, on motion and good cause shown, in its discretion, and upon such terms as may be just, allow any such proceeding to be taken in an action after the time limited by any order of the court has expired. Sec. 2831; Morgan v. Bishop, 61 Wis. 410; Sup'rs Milwaukee Co. v. Pabst, 64 Wis. 241. Application, in a case like this, under that section, must necessarily, in the first instance, be to the court of original jurisdiction, and not to the court which can “ exercise an appellate jurisdiction only.” As yet no such application has been made to the trial court. The mere fact that an order has been affirmed does not seem to have the effect of taking away the original jurisdiction of the trial court, in the exercise of a sound discretion, in a proper case, and upon good cause shown, and upon such terms as may be just, to allow a party to comply with the conditions of such order, notwithstanding the time for doing so has in part or wholly expired. As stated in the opinion filed, the affirmance of an order leaves it the same as though no appeal had ever been taken therefrom. The right of the trial court to authorize such compliance with its own orders after the time has so expired, in case there has been no appeal, would seem to be undoubted.

Some of the things said above by way of argument have respect to matters not legitimately before us, and may therefore be justly regarded as obiter and not binding upon the court; nevertheless, the history and character of this litigation has been such that we deem, it for the interest of both parties, and not improper, to s'ay what we have.

By the OouH.— The motion for'a rehearing is denied, with $25 costs.