Herfurth v. Biederstaedt

Cole, J. We think the circuit court properly refused to vacate the judgment on the case presented. The proposed answer and accompanying affidavits really disclosed no meritorious defense. The rule in this class of cases is stated by Mr. Justice Paine, in Van Steenwyck v. Sackett, 17 Wis., 645-657, as follows: “ The supervision which courts exercise, on motion, over judgments entered on warrants of attorney, is of an equitable character, and the burden is on the party moving to show that he has been or will be subjected to some wrong or injustice, before the court will interfere.” Nowr, the answer sets up, in substance, that the notes upon which judgment was entered, were executed in consideration of the surrender of an old note personally given by the defendant August Herfurth to the plaintiff, and that such old note was never surrendered, or offered to be surrendered, to Herfurth, before this motion, although demand was often made for it. This statement in the answer is positively denied in the affidavits used in opposition to the motion. It appears from these affidavits, that the old note has always been in the possession and under the control of the plaintiff, ready to be delivered up to the maker whenever demanded, and that, before this motion was made, or notice thereof given, the attorney of the plaintiff offered and tendered the old note to August Herfurth, who refused to receive it. This satisfactorily disposes of the point that the plaintiff had refused or failed to surrender the old note on demand. The other allegations in the second subdivision of the answer, to the effect that the notes [638] were never delivered to the plaintiff, but that possession of them was obtained by plaintiff’s wife, are fairly open to all the criticism passed upon them by plaintiff’s counsel; and moreover, they are directly in conflict with what is stated in the first part of the answer. As it was not shown that the judgment was inequitable or unjust in any respect, no ground was laid for vacating it. By the Court. — The order of the circuit court is affirmed.