Felton v. Hopkins

PxNNet, J. 1. The order requiring the plaintiff to give security was regularly and properly made under the statute (E. S. sec. 2945), and no previous notice of application therefor was necessary. Eor this reason the motion of the plaintiff to vacate the order was not well taken. 2. The plaintiff was in default for not filing security as required by the order, and had been for nearly two months. The defendants were entitled to an order dismissing the .action, with the usual costs and costs of motion, unless for “ good cause shown, in discretion, upon such terms as may be just,” the court allowed security to be given after the time limited therefor by the order had expired. E. S. sec. 2831. The return, is certified as containing all the papers filed in the action, and there is nothing excusing the plaintiff’s default, nor is there anything in the order to indicate that any excuse was shown, or that any motion was made by him to be relieved from his default. Both by statute (sec. 2831) and the rules of court (Circuit Court Eule XI, 145 secs. 1, 2), such, motion could be brought on for hearing only upon due notice, accompanied with proof, or referring to such properly on file, showing the propriety of granting the desired relief. Hungerford v. Cushing, 8 Wis. 323. The object of the rule evidently is, as was said in that case, “ to compel the party making the motion to inform the adverse party of the proof upon which he intends to rely in support of the motion, to enable Mm to resist the motion at the hearing.” Unless the plaintiff was relieved from his default, the defendants were entitled to an absolute dismissal of the action because of the plaintiff’s neglect to comply' with the order; and this without previous notice. Joint School Dist. No. 7 v. Kemen, 72 Wis. 181. By the parts of the order appealed from, a motion to dismiss, regularly and properly made, was denied, and the defendants were punished with costs for making it, and the plaintiff allowed to then file security without terms and without any showing excusing his default. It is no justification for the order to say that relieving a party from the default, and the imposition of costs, are matters of discretion. The discretion intended means a sound legal discretion, exercised according to legal rules (Cleveland v. Burnham, 55 Wis. 598); and not arbitrary or capricious action. There was nothing put upon the record to properly invoke such discretion. We think that the parts of the order appealed from are not within a fair exercise of judicial discretion, under the statute and rule-of practice referred to, and that they should be reversed. By the Court.— The parts of the order appealed from are-reversed, and the cause is remanded for further proceedings according to law.