Town of Omro v. Ward

By the Court, Cole, J. The motion to set aside the judgment appears to have been founded solely on the affidavit of Riddle. This shows a. perfectly satisfactory reason why he did not reach the place of trial until after the cause was reached and judgment rendered. His detention was in consequence of an unavoidable accident on the railroad, which prevented him from making his connection at the Minnesota Junction. Therefore due diligence was shown. It is insisted that the judgment should not have been set aside without an affidavit of merits accompanying the motion. Such an affidavit upon taking off a default was formerly held to be indispensable (Mowry v. Hill, 11 Wis., 146; Burnham [234] v. Smith, id., 258; Johnson v. Eldred, 13 id., 482; Butler v. Mitchell, 15 id., 355); but probably the practice has been changed in this respect by chap. 211, Laws of 1861, where the answer itself shows merits and is verified. The language of the answer is a little peculiar in view of the allegations in the complaint, and is hardly such as to entitle the party to have the judgment set aside upon it alone. We find, however, among the papers, an affidavit made by Ward for the purpose of procuring a continuance of the cause, which appears to have been filed the day judgment was entered. It was stated by the counsel for the respondent that this affidavit was actually read and considered by the court on the hearing of the motion. This affidavit, together with the answer, shows a good defense, and if it were included in the motion papers we should have no difficulty in affirming the order appealed from. But it never was made a part of the motion papers, and consequently we cannot consider it on this appeal. If it was really used upon the motion, it should have been included in the motion papers. Shewey v. Manning, 14 Wis., 448. It is very clear that as it now stands it is not a part of the motion papers. Nor does chap. 114, Laws of 1862, help the matter. That provision renders it unnecessary to serve as a part of the motion papers copies of all such papers as have been previously served in the action. But the affidavit of Ward had not been previously served, and therefore this law has no application to the case. Under all the circumstances we have concluded to reverse the order of the circuit court, but with leave to the respondent to renew the motion upon an affidavit of merits. The order of the circuit court is therefore reversed, without prejudice to the right of the respondent to renew the motion should he so desire.