Falkenberg v. Gorman

Cassoday, J. The limitations upon the discretion vested in trial courts in the matter of opening defaults and allowing a defense have been so often and so recently stated by this court as to require no repetition here. Whereatt v. Ellis, JO Wis. 207, and cases there cited. Upon the rules thus established, we do not feel justified in holding in this case that there was any abuse of such discretion. In some particulars the affidavits were conflicting. Mr. Simon gives' in detail his conduct in relation to the case from September 20, 1886, to October 4, 1886, when the case was taken from him. It appears from that affidavit that he notified the defendant by letter to call at his office respecting the case as early as September 20, 1886, but that she did not do so; that on the morning of September 28, 1886, he repeated such notice by letter, but got no response; that at 2 p. m. of that day the next day’s calendar was made up, including this case, which was the sixth and last on that day’s calendar; that September 29, 1886, at 8:30 a. m., he telephoned the defendant’s husband at her place of abode in Milwaukee, and the response came that the defendant [10] was in bed; that at 9 a. m. the same was repeated, with the same response; that he then telephoned at her said place of abode the importance of seeing her; that at 10:30 he called at her place of abode, and was then informed that she was not there, and had not been there for a day or so, but was at her mother’s, sick in bed; that he then went to her mother’s house, and was there informed that she was not there, but was at her aunt’s; that he then went to her aunt’s, and was there informed that she had gone home; that soon after 4,p. m. he again went to the defendant’s house, and was there informed by her mother that she was sick in bed,— “dead drunk;” that he then went where he could see into her bedroom, and there saw her in bed in an unconscious- condition. The facts are stated in a way to carry ■ conviction; and in relation to her condition and some other particulars Mr. Simon was corroborated by the defendant’s mother and the plaintiff’s counsel. A party who is absent under such circumstances is not in a condition to obtain relief from the equity side of the court on the ground of the negligence of her attorney. 2. It is moreover claimed that the motion should have been granted, because the stipulation mentioned operated as a continuance of the cause. It appears that September 30, 1886, was a day to be kept sacred, or as a holiday, in the belief of Mr. Simon. Eearing that the case might not be reached for trial on September 29,1886, he on that day, and some time before it was in fact reached, and for his own accommodation, induced the plaintiff’s attornej's to stipulate with him, in effect, that the case be placed at the foot of the September calendar, and then not to be tried until reached in its regular order, but with the understanding that the cause should be tried if reached in its order on the day calendar of the 29th, as it was. The court refused to receive the stipulation, on the ground that it was- contrary to the rules of the court, as appears to have been the [11] fact. Manifestly, the making of the stipulation, under the circumstances mentioned, furnished no reason for opening the default. By the Gourt.— The order of tbe county court is affirmed.