State ex rel. Voight v. Hœflinger

Cole, J. The question arising on this appeal is, whether the court below properly granted a new trial upon the affidavits presented. Under the circumstances, we think it did. The power of the court to relieve the respondent from the former judgment on the ground of mistake, surprise, or excusable neglect, is clearly conferred by section 38, ch. 125, R. S. ; and. the only question really for consideration is, whether the court was guilty of any abuse of discretion in the matter. It appears from the affidavits and exhibits upon which the application for a new trial was founded, that the commissioners. appointed by ch. 64, P. and L. Laws of 1870, had entered into a contract for the building of the bridge mentioned and authorized by the act, and that the respondent had paid out all the funds in his hands which were demanded by the relator, upon this contract. This is most material to the respondent’s case. And he states in his affidavit, to excuse his failure to set out these facts in his answer, that when the cause was tried by the circuit court in August, 1871, he was “ misled as to the necessity of amending his answer by setting up the payment ■ of said funds as a defense, by a conversation held at the time it was proposed to submit the case on the writ and answer, that, if not set up in his answer, it could be shown when the final judgment would be entered, and application for a peremptory, [598] writ, applied for, and that this talk was between the plaintiff’s attorney and his own, and the judge of the court.” Now it is not denied in the affidavits made by the attorneys of the relator, which were used to resist the motion for a new trial, that this conversation did take place in court as stated by the respondent. Certainly the circuit judge knew whether it ■ took place or not; and if such conversation did occur, and the circuit judge participated in it, this would afford the strongest reason for granting the application. For it was natural that the respondent should rely upon it, and neglect to amend his answer at that time, supposing that he could show all these facts at a subsequent stage of the cause. It was an honest mistake as to the practice, and the court might have thought that it had in some degree contributed to produce it. However this may be, the failure of the respondent to amend his original answer by setting up the making of the contract for the construction of the bridge, and the payments upon it, seems to be abundantly excused. It is a much stronger case for granting relief than that presented in Kennedy v. Waugh, 23 Wis., 468, where this court held that a party ought not to lose the benefit of a valid defense because, on account of surprise and confusion of mind on the part of his attorney, an amendment to the answer was not made, nor asked for, on the trial, and not until after judgment. And furthermore, when we consider the turn the case took in this court on appeal, and the ground upon which the judgment of the circuit court was affirmed, a more meritorious application fora new trial cannot well be imagined. This court affirmed the judgment, not on the ground that the law of 1870 authorizing the application of the moneys mentioned in the pleadings was invalid, but because it appeared that this act had been repealed by ch. 70, P. &L. Laws of 1871, which took effect after trial and judgment in the circuit court. . Therefore, in view of these matters and of the conversation had in court above referred to, we think the respondent’s failure to amend his answer was fully excused. Of course we think that [599] if the respondent had paid over on the contract for building the bridge all the moneys in his hands applicable to that purpose, while ch. 64 was in force, this constitutes a perfect and complete defense to this action. This is the clear intimation of the chief justice when the case was before us.on the former appeal, and we have no doubt whatever upon that point. State ex rel. Voight v. Hœflinger, 31 Wis., 257. It is suggested in the brief of counsel for the relator, that ch. 64, being a general law, was not in force until published September 2,1870, and of course not in force when the contract for building the bridge was entered into, on the 8th of July, 1870. This clearly does not affect the rights of the defendant This contract was performed, and the payments were made upon it, after that law took effect, and before the enactment of the repealing statute. The acts of the parties under that law were consequently valid. The counsel for the relator further suggests that the respondent had no right to pay out moneys on the bridge contract after the alternative writ was served upon him. Why not ? If the law authorizing the construction of the bridge was valid — as we have no doubt it was, — the contract entered into by the commissioners was unobjectionable, and it was the duty of the respondent to pay orders drawn by the commissioners upon him. ' We do not see any ground for holding that the doctrine of res adjudícala applies to this case. The new trial should not have been granted except upon terms. Carroll v. More, 30 Wis., 574. The order of the circuit court must be modified, by requiring the respondent to pay the costs of the former trial as a condition to taking the benefit of the order. By the Court. — So ordered.