Whereatt v. Ellis, 70 Wis. 207

Whereatt v. Ellis

70 Wis. 207 | Wis. | 1887

Cassoday, J.

This is the sixth appeal to this court in this cause. No trial or hearing upon the merits has ever been had, notwithstanding an answer upon the merits to each of the several causes of action was served nearly three years ago. The wisdom of meeting all questions having merits, upon the merits, at the first opportunity, is here both illustrated and demonstrated. But we are not prepared to say that these several appeals were the result of mere perversity. The first appeal from the order on the demurrer was before the answer, and not here involved. No such perversity can be fairly claimed as to the appeal from the order of July 2, 1885, as the question involved went to the jurisdiction of the commissioner and was decided by a divided court. No bad faith can be imputed by reason of the appeal from the judgment, as it raised questions which were fairly debatable. The only ground left for imputing bad faith is the appeal from the order of June 17,1886, and the order of the judge at chambers made June 23, 1886; and which last appeal was dismissed. 68 Wis. 61. Those order’s. were made after the defendant’s *213answer had been stricken out and judgment entered, without notice, as upon default. As indicated in the opinion last cited, the entry of such judgment in that way was manifestly a surprise to the defendant. As there said, it “ apparently grew out of a misconception or inadvertence in relation to the order of July 2, 1885, and the effect of the appeal from it.” The defendant seemed to have acted on the theory that the stay of proceedings granted by a justice of this court, and then continued by the court, related back to the time of taking the appeal, and hence prevented any default of the defendant. But, as there shown, the time for paying the costs and giving the requisite notice expired July 27, 18S6, and the stay was not granted until July 28, 1886, and then only operated from that day and pending the appeal. It is easjr to perceive how an attorney might be misled under such circumstances. Among the conditions of the order of June 17, 1886, was the one that the judgment should stand as security for the payment of any judgment the plaintiff might recover. This being so, an appeal from the judgment in good faith would seem to indicate the necessity of appealing also from the order; whereas, not to appeal from either would have left the defendant in a position where, if beaten upon the merits, he would have been obliged to pay a judgment which, if we are to believe his affidavit, he conceived to be not only excessive, but unjust. Moreover, as the continuance of the judgment was among the conditions of the order, the mere giving of the deposition and payment of costs, after the appeal from the judgment, would not have been a full compliance with the order; besides, there had been an offer to give the deposition.

Upon the facts stated, can we say that the defendant has forfeited all right to any trial or hearing upon the merits? The application here refused was addressed to the sound discretion of the trial court. Sec. 2832, R. S. In Union *214Nat. Bank v. Benjamin, 61 Wis. 514, it'was said that terms may “ be imposed which, as near as may be, will place the plaintiff in as favorable a position as he would have been in had the relief been denied. But the order of the court places the plaintiff in a better position, for it gives it absolute security for any judgment it may recover in the action ; ” and hence it was held to be an abuse c>f discretion. In Morgan v. Bishop, 61 Wis. 410, the order was reversed on the ground that there had been an abuse of discretion, because the defendant was allowed, after the cause had been at issue for some time and the plaintiff had subpoenaed his witnesses and was ready for trial, to amend his answer by pleading for the first time the statute of limitations, voithout imposing any terms except the mere costs of the motion. It is there said: “ What will be in the ‘ furtherance of justice,’ and what ‘terms’ are to be regarded as ‘just,’ must depend upon the facts of each particular case.” Then, after citing several cases illustrative of the rule, it is further said on page 411: “ Such being the established rules of law, the obvious duty of a trial court, sitting as a court of conscience, in the exercise of a sound discretion upon such application, is to do or secure substantial justice to the parties under all the circumstances¡ ” among which were there enumerated, “ the state of the litigation, the amount of costs that have been incurred, whether the allowance of such amendment would work a continuance, and any other fact going to the equity of such allowance.”

Here, the answer stricken out, and sought to be made available as a defense, did not set up the statute of limitations, nor usury, nor any unconscionable defense, but defenses which, if true, were each and all meritorious and such as to entirely defeat each of the causes of action alleged in the complaint, to say nothing of the counterclaim. The defendant may never be able to prove the defenses alleged, but for the purposes of this application they must each be *215taken as trae. So taken, and the case presented is a judgment of about $3,000 against the defendant as upon a default, when he had a good defense upon the merits to each and all the several causes of action alleged in the complaint, but which he had been precluded from proving in the manner indicated, and which he never can make available. In other words, upon the case thus stated, the defendant is held liable for the payment of $3,000, without any meritorious cause of action against him; as the price of his temerit_y in appealing from an order of the trial court under the advice of counsel, instead of submitting thereto, as we have held he should have done. Defaults incurred through the ill advice or negligence of counsel are to be relieved against as well as an\r others. Morgan v. Bishop, supra; Hanson v. Michelson, 19 Wis. 498. Of course, as urged, the trial court has a discretion in such matters, but “ such discretion must be a legal discretion, and where the application is made in time, and presents a case of ‘mistake, inadvertence, surprise, or excusable neglect,’ accompanied by a verified answer alleging a good defense on the merits, it is a manifest abuse of discretion not to open the judgment upon reasonable terms.” Cleveland v. Hopkins, 55 Wis. 390. The duty of the trial court, sitting as a court of conscience, in such matters, is, as above indicated, “ to do or seciwe substantial justice ” between the parties, under all the circumstances. To do that, where a defendant is in default, having a good and conscionable defense, thus excused and presented, is to give him a trial or hearing upon the merits, upon such terms and conditions as to do no injustice to the opposite party. The trial court acted upon that theory in making the order of June 17, 1886. That order should have been complied with. The failure to comply with it operated as a delay from June to the March following. A new order, the same in substance, with new dates for the time of the payment and the examination therein *216mentioned, and in addition requiring the defendant to pay to the plaintiff or his attorney such sum as may be fixed by the trial court, not exceeding $50, should now be entered.

By the Court.— The order of the circuit court is reversed, and the ca,use is remanded with direction to enter an order in substance and effect as indicated.