Pfister v. Smith

Maeshall, J. The first question raised on this appeal is, Has a court commissioner power to grant an order for the service of a summons by publication, or, in lieu thereof, service without the state, under sec. 2640, R. S. ? That provides that such an order may be made by the court or a judge thereof» Sec. 2815, S. & E. Ann. Stats., provides that “ where these statutes authorize an order or proceeding to be. made or taken by the presiding judge, or by the circuit judge, using such words of designation, no county judge or court commissioner can act. Except as so provided, or otherwise expressly directed in particular instances, a county judge or court commissioner may exercise within his county the powers, and shall be subject to the restrictions thereon, of a circuit judge at chambers, according to existing practice and these statutes, in all actions or proceedings in courts of record.” Under such section, the word “judge” must be construed to include county judge or court commissioner. Clark v. Bergenthal, 52 Wis. 103. It follows that sec. 2640, taken in connection with sec. 2815, must be construed as if it read: “ The court, or judge thereof, or the county judge, or any court commissioner of the county in which the action is commenced, may make an order for service by publication,” etc. Moreover, in this case the general appearance by defendants, and motion to set aside the default on the ground of excusable neglect, constitute a waiver of all questions of jurisdiction and defects in the service. Dikeman v. Struck, 76 Wis. 332; Eureka S. Heating Co. v. Sloteman, 67 Wis; 118. A motion to set aside a judgment taken by default is addressed to the sound discretion of the court, and, in order to disturb its decision, it must be made to appear clearly that there has been an abuse of such discretion. Kalckhoff v. Zoehrlaut, 43 Wis. 374; Seymour v. Chippewa Co. 40 Wis. 62. Unless the answer tendered sets forth facts sufficient to constitute a good and meritorious defense and the default is satisfactorily'excused, the motion may properly be 55 denied. Jefferson Co. Bank v. Robbins, 67 Wis. 68. Here it appears that the defendants failed to make any effort whatever to defend the action before judgment, and though the answer thereafter tendered, on the motion to open the default, is in their names and verified by one of them, the assignee appointed by the Massachusetts court in the insolvency proceedings appears to be the real moving party. The end sought obviously is to obtain possession of the property in this state for administration in such insolvency proceedings. The assignees appointed in the first instance by the defendants appear to have had full authority to act in their behalf. They knew of the commencement of the action on the 23d day of January, 1896, yet gave no directions to the attorney to defend prior to the rendition of the judgment. He was directed by letter, dated the 29th day of January, 1896, to appear and put in some kind of an answer for the purpose of keeping the case open. That can hardly be called a direction to defend. Nothing further was done until about the 9th day of March, 1896, when the proposed answer, tendered on the motion, was forwarded to the attorney to enable him to make such motion. Erom this it is clear that defendants and their assignees wholly neglected to put their attorney in possession of the facts, so that he could either advise them respecting the case, or interpose an answer in their behalf, till nearly a month after the rendition of judgment ; and no satisfactory excuse for such neglect appears in the moving papers. The affidavit of the attorney is to the effect that he did not appear in time because he did not know that personal service had been made upon the defendants in Massachusetts; but no satisfactory excuse is offered why such defendants or their assignees did not give the attorney such information, or why he did not obtain the same himself from the records of the court. Moreover, if he had been fully possessed of all the facts in that regard, he could not have interposed an 'answer because of the failure of de 56 fendants and their assignees, as before stated, to furnish him with a statement of the facts relied upon as a defense. In view of these facts, and the showing that the money loaned, whether direct to Smith or to both defendants, was used in the business of the partnership, we cannot say that the record shows a clear abuse of judicial discretion in the making of the order appealed from; hence the order must be affirmed. By the Court.— The order is affirmed.