Superior Consolidated Land Co. v. Dunphy

PiNNEY, J. 1. The application of the defendant for relief is under P. S. sec. 2832, on the ground that the judgment was entered against him through his inadvertence or excusable neglect. While the court commissioner may make an order granting relief in such cases, his order is subject to review by the court on motion, and the order of the court, when made, stands as its proper exercise of discretion upon the merits of the application. The order appealed from was one within the discretion of the trial court, and its refusal to grant the application will not be interfered with on appeal, unless it is manifest that such discretion has been abused. Wheeler & W. Mfg. Co. v. Monahan, 63 Wis. 194. Unless the neglect or default of the defendant is excused, and a verified answer is 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; Milwaukee Mut. L. & B. Soc. v. Jagodzinski, 84 Wis. 35; Day v. Mertlock, 87 Wis. 583. The defendant was guilty of such laches, we think, as to bar his claim for relief. After the action had been commenced and attorneys appeared for him and his codefend-ant, he left the state and went to Colorado for his health, leaving his attorneys, who had advised him that they did not think there was any defense, to discover one if they could, as well as the evidence to support it, and without putting in any answer. He gave the case no further attention, except to write to one of his attorneys a single letter. After his return, in April, 1894, it seems it did not occur to him to see his attorneys, or inquire what had become of the [193] •action, until the following July, when it appears be first learned of the existence of the judgment; and this application was not made until the following November. It is not necessary to consider whether his attorneys had a right, •under the circumstances, to stipulate for the entry of judgment, as they did, after consulting with his codefendant, for whom they were acting, obtaining thereby a very considerable delay, having become satisfied in the meantime, by repeated investigations, that there was no defense to the action. We regard the case as in the same plight as if no stipulation Rad been made. But for the stipulation, judgment must have passed against him six months earlier. He has lost nothing by it, and has no right, under the circumstances, to complain ■of it. Beyond sending to his attorneys, in October, a statement of a supposed defense which, on investigation, did not appear to be available, he did nothing whatever in defense of the action; and, beyond his condition of ill health, nothing is shown to justify or excuse his neglect. It does not appear that, during all this period of delay, he was incapable ■of giving proper attention to his defense. ■ 2. The defenses sought to be interposed after such neglect ■and delay are alleged upon information and belief only, and nothing was produced in support of the answer to show that •either of them could probably be established. It was necessary, in order to obtain the desired relief, to show that he had a good defense on the merits, and the application should have been based either upon an answer verified upon personal knowledge of the party himself, or upon an affidavit by some one having personal knowledge of the facts, for the •application could only be granted if the ends of justice seemed to require it, and not merely on the ground that the party might possibly be able to make out a defense. A showing upon information and belief is not sufficient. Johnson v. Eldred, 13 Wis. 482, 485; Stilson v. Rankin, 40 Wis. 527; Loucheine v. Strouse, 49 Wis. 623; Pinger v. Vanclick, 36 [194] Wis. 141, 144. There is no difference in practice in these respects, as was suggested in the argument, between legal and equitable actions. Mowry v. Hill, 11 Wis. 149, 150. It does not appear that there was an improper exercise of discretion on the part of the court, and for these reasons the order appealed from must be affirmed. By the Court.— The order of the circuit court is affirmed- Marshall, J., took no part.