Hinman v. C. H. Hamilton Paper Co.

Taylor, J. The affidavit of the defendants’ attorney shows that the defendants had made preparation to defend the action in good faith; that he notified his clients to be ready with their witnesses on the 13th for the trial, and to proceed at once to the court house on receiving notice from the clerk that the cause was to be called for trial; and that, as soon as they were notified by the clerk, they did proceed directly to the court, ready to proceed, and arrived there a little before half-past ten. ■ The defendant G. IT. Hamilton testifies that he was at the store, and received the notice by telephone, and immediately proceeded to the court room, and arrived there before half-past ten, and was informed when he arrived that judgment had been taken against them. The clerk of the court testifies that he sent the message to the defendants’ place of business fifteen minutes before ten o’clock on the morning of the 13th. There being no question in this case as to the good faith of the defendants as to their defense of the action, and the presiding judge having, by implication at least, given the defendants’ attorney the right to rely upon the clerk’s giving him or his clients timely notice when the cause would be called for trial, and there being no evidence showing any unnecessary delay on the part of the defendants or their attorney in proceeding to the court prepared to make their defense, after receiving such notice, it seems to us that the refusal to set aside the default and permit the defendants to make their defense can hardly be said to be in furtherance of justice, or a proper exercise of that legal discretion which the trial judge is bound to exercise in such cases. If in this case there was any delay ' in going to court in order to make defense after the notice was given by the clerk, it must have been of a very trifling character, and could have involved at the most only a delay of a very few minutes. We are inclined to think that the court could have vindicated its right to have the business before it proceed in a regular and orderly manner, if there had been a few minutes’ delay on the part of the defendants in [172] reaching the court, by the imposition of such terms as might be just in the way of costs, upon setting aside the default, and that the facts do not present a case of such neglect on the part of the defendants or their attorney as would justify the court in cutting off all right of defense. The eases relied upon as justifying the action of the court in this case are not, as we think, in point. Holden v. Kirby, 21 Wis., 150; Stilson v. Rankin, 40 Wis., 527. In both these cases this co.urt held that the defaults were improperly set ■ aside, because it was evident that there was a want of good faith on the part of the defendants as to the defense of the actions. In the case of Holden v. Kirby, which in its material facts was very much like the present case, this court held expressly that the defendant had fully excused himself for his non-appearance when the ease was called,- and the order was set aside because the defendant’s answer did not state any . defense to the plaintiff’s cause of action; and in the case of Stilson v. Rankin, the order setting aside the default was reversed mainly upon the ground that it was evident, from all the circumstances in the case, that the object of the defendant was to postpone a trial and judgment rather than to seek an opportunity of making a valid and meritorious defense. In that case the late learned Chief Justice Ryajst remarks, “that a judgment following upon a trial of a cause in its order upon the calendar, and free from all irregularity, should not be disturbed, even at the same term, unless the party complaining of it show reasonable excuse for his failure to resist it, and reasonable presumption that, it does him substantial injustice. Had the order vacating the judgment provided for the immediate trial of the issue, at the election of the appellant, wre might have hesitated to reverse it.” We are clearly of the opinion that the defendant has shown a reasonable excuse for his failure to resist the judgment entered in this case, and if the facts set out in his answer are true, as we think they .must be taken to be for the purposes of determining the jus [173] tice of the order appealed from, there is a reasonable presumption that the judgment does him substantial injustice. He also gave evidence of the good faith of his defense by his offer to go to trial immediately on his appearance in court. ¥e are not unmindful that orders refusing to set aside a default and permit a defense are addressed to the discretion of the court; but in their determination the court must exercise a legal discretion — a discretion which promotes justice as between the parties to the action. An order which is necessarily unj ust to either cannot be sustained on the ground that it is made in the discretion of the court. By the Court. — -The order of the county court is reversed, and the cause remanded with direction to the county court to set aside the default and verdict, and permit the defendant to defend the action upon such terms as may be j ust. Obtoh, J., took no part.