Behl v. Schuette

Maeshall, J. It sufficiently appears that the failure of the plaintiff to be present with his witnesses and attorneys in time for the trial was wholly on account of his being misinformed of the conditions of the order setting the case for .such trial. TJnder the statutes providing for the relief of a party from the consequences of mistake, inadvertence, surprise, or excusable neglect (sec. 2832, R. S.), a party may properly be held excusable for the negligence of his attorney, and be relieved from such negligence on proper terms. Whereatt v. Ellis, 70 Wis. 207; Hanson v. Michelson, 19 Wis. 499; Flanders v. Sherman, 18 Wis. 576. Such was the conclusion of the learned trial judge, and on the record the case was an ordinary one, calling for such relief upon reasonable terms. There is no arbitrary rule by which the terms for opening a default in such a case can be fixed. The power in the matter is of a purely discretionary character, and should be exercised, not harshly, but with sound judgment, in such manner as to do justice between the parties so far as that end can be practically attained. Obviously the court must be governed by the principle that a party circumstanced as plaintiff was should bear the consequences of his own fault, rather than that the diligent party should suffer. To that end it was proper that the plaintiff should be required to pay the reasonable expenses incurred by the defendants, which they would lose by opening the judgment. But the court should not have gone further than to require the moving party to pay such reasonable expenditures, and could not without overstepping the bounds of legal discretion. Union Nat. Bank v. Benjamin, 61 Wis. 512. It follows from the foregoing that the question involved [444] here is not solely whether the defendants incurred the large bill of expenses which the court required plaintiff to pay as a condition of relief from the judgment, but whether such expenses, under all the circumstances, were reasonable. The cause of action was one on contract for a small amount of money. It evidently involved no intricate questions of either law or fact. Upon what ground it can be held that, the presence of an attorney and a counselor as well was necessary in order to try such a case is not perceived. Evidently the learned circuit judge understood the rule to be that the party seeking relief must make the opposite party good for all his expenditures incurred in obtaining the judgment, without reference to whether such expenses were reasonable or not. That was erroneous. The amount should have been limited to reasonable expenses. For such a simple case as this appears to have been, in our judgment the sunn of $15 per day for attorneys’ and counselors’ fees was ample.. The other items which the court required to be paid were-taxable costs, and, though they appear very large, there is nothing before us by which we can determine whether they were properly taxed or not. Therefore the only modification we can make in the order is to require the amount of attorneys’ and counselors’ fees to be reduced to $15 per day for the three days, making the total sum to be paid by plaintiff,-as a condition of setting aside the judgment and granting a new trial, $136.55. By the Cov/rt.— That part of the order of the circuit court appealed from is reversed, and the cause remanded with directions to modify such order in accordance with this opinion.