Milwaukee Mutual Loan & Building Society v. Jagodzinski

Pinitey, J. 1. The judgment set aside by the order appealed from was rendered at the May term, 1891, and the order to show cause was obtained and heard, and the order in question was made, at the November term in the same year, the September term having intervened. The sum [39] mons in the action was properly served, and the court, when it rendered the judgment, had jurisdiction of the subject matter and of the parties. Nothing is better settled than that the motion to set aside this judgment upon the errors and irregularities here complained of came too late. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265; Salter v. Hilgen, 40 Wis. 363; Pier v. Amory, 40 Wis. 574; Scheer v. Keown, 34 Wis. 349; Loomis v. Rice, 37 Wis. 262; Herman v. Mason, 37 Wis. 273; Fornette v. Carmichael, 38 Wis. 236; Cole v. Mitchell, 77 Wis. 135. All the errors relied on, worthy of any consideration, relate to matters upon which the mind of the court did act, or must be presumed to have acted, in rendering the judgment, and appear upon the face of the record, and the court is precluded from again acting on the same matters at a subsequent term, and changing its opinion or altering its judgment. This rule is subject to few exceptions, stated in Ætna L. Ins. Co. v. McCormick, supra. After the close of the term the party complaining can obtain relief only by writ of error or appeal, or under the statute which authorizes the court to relieve a party, at any time within one year after notice thereof, from a judgment, order, or other proceeding against him through his mistake, inadvertence, surprise, or excusable neglect. Sec. 2832, R. S. 2. The respondents’ counsel insists that the order should be sustained, as a fair and proper exercise of discretion, under sec. 2832. The order recites, as ground for making it, “ that all proceedings subsequent to the service and filing of the summons are improper and erroneous; ” and it does not purport to have been made as an exercise of discretionary power under sec. 2832. No irregularity or defect in the complaint was suggested, nor any sufficient reason for vacating the order appointing a receiver. This order was made on the ground that the premises were not adequate security for the debt, and it operated as a seques [40] tration of the rents and profits accruing after its date, with such as were then due and unpaid, to be applied in payment of any deficiency that might remain unpaid after the sale of the mortgaged premises. Gaynor v. Blewett, 82 Wis. 313. If the order was made under the section cited, it should have been upon terms, allowing the defendant Jacob Jagodsinslci to file his answer and litigate the question of the amount due on the bond and mortgage; the other defendant not having tendered any answer with the application. It is not easy to see why the court ordered “ that all proceedings subsequent to the service and filing of the summons ” be set aside. We think that the application is clearly insufficient, and that it did not warrant the court in making the order. There is no pretense that the failure of the defendants to appear and defend the action was the result of any mistake^ inadvertence, surprise, or excusable neglect. The only reason assigned is that an attorney' at Milwaukee, whom they consulted, told them “ that they had no defense, and that it was unnecessary for them, and would make them unnecessary costs and expenses, if they appeared to defend therein; ” but when they were so informed they do not state, and it may well have been after judgment had passed against them. The plaintiff was not required to serve his complaint with the summons. The defendants were personally served with the summons February 19th, and judgment was not entered until the 20th of June next thereafter, and although there was a contest with the receiver in respect to the control of the mortgaged premises as early as August 19th, and proceedings had to punish the principal defendant as for contempt were then instituted, to be heard on the 29th of that month, yet this application was not made until more than three months thereafter. The court was entitled to know the specific ground of defense before granting the relief prayed for. The several items [41] which went to make up the amount for which the judgment was rendered were stated in it in detail, and no one of these is assailed or fairly met by the proposed answer or petition. In substance, the principal defendant admits in his answer that $1,989 was expended to his use in the erection of a building on the mortgaged premises. He claims that he has since paid thereon $407.15. There is contained in the record the computation of the referee, and the evidence of the plaintiff’s secretary, Mr. Maher, showing the various items composing the total sum of the judgment, and showing that the defendant had paid in instalments $180. This sum, with $39.38 interest thereon, deducted from the loan, plus interest, fines, taxes, and insurance, makes the amount of the judgment. It is to be borne in mind that the bond and mortgage contain the usual provisions in such cases, and the fairness of- the transaction cannot be impeached by dealing in generalities. With the bond and mortgage and the detailed statement of items on file, the court should have required something more specific than is contained in the petition and answer before setting aside the judgment. The rule of practice is that an application to set aside a judgment and for leave to answer is largely addressed to the discretion of the court to which it is made, and unless the default of the party is excused and a verified answer tendered, showing a defense on the merits, the court ought not to interfere. Seymour v. Chippewa Co. 40 Wis. 62, 65; Union L. Co. v. Chippewa Co. 47 Wis. 246, 248. We do not think that the default of the defendants was in any manner excused, and for that reason the order cannot be sustained as within the discretionary power of the court; and we may add that the answer and moving papers do not make a satisfactory showing of meritorious defense. For the reasons stated the order of the circuit court must be reversed. By the Court. — -The order of the circuit court is reversed, and the case is remanded for further proceedings.