Platt v. Schmidt

Dodge, J. No doubt whatever is suggested that the plaintiff did duly and in form file exceptions to the findings of fact of the trial court, and that he did intend and attempt to so incorporate into his bill of exceptions the fact that such exceptions were taken as to enable this court to review those findings in the light of the evidence. Neither the court below nor the counsel.for the respondent could have otherwise interpreted the assertion in the bill of exceptions quoted in the foregoing statement of facts. Nor does counsel for the respondent venture to controvert the assertion in the affidavit of appellant’s attorney that the omission to include in the bill itself those exceptions, or to so refer to and identify them as to make them a part of the bill, was through inadvertence and excusable neglect. When it appears that an omission in any proceeding is material, or that proceedings taken by a party so fail to conform to provisions of law as to be fatal to rights which might otherwise be protected, and that such omission or failure is through mistake, inadvertence, surprise, or excusable neglect, it is abuse of discretion to refuse to supply such omission and permit amendment of the proceedings so as to remove the technical obstacles to a litigation [399] of tbe merits of tbe controversy. Wicke v. Lake, 21 Wis. 410; Cleveland v. Hopkins, 55 Wis. 387, 390, 13 N. W. 225; Whereatt v. Ellis, 70 Wis. 207, 35 N. W. 314; Boutin v. Callin, 101 Wis. 545, 77 N. W. 910; Bloor v. Smith, 112 Wis. 340, 87 N. W. 870; sec. 2832, Stats. 1898. Tbe objections made to appellant’s motion to supply bis omission, so far as disclosed either by -tbe affidavit of respondent’s counsel or by bis brief and argument in tbis court, rested upon two contentions: First, that tbe appellant bad been guilty of laches and delay in attempting to cure sucb omission; and, secondly, that tbe matter of sucb application bad become res adjudicaba by tbe denial of bis motion to grant an extension of time and leave to settle a new bill of exceptions. In tbe case before us tbe facts as to laches are not in controversy, but appear mainly upon tbe record. That record, together with tbe affidavits, while indicating that delays might well cause embarrassment and expense to tbe defendant for tbe reason that she is keeping up a deposit in court of tbe sum which she concedes to be due upon tbe mortgage, fail to disclose any lack of diligence on tbe part of appellant’s attorney after discovering tbe omission sought to be remedied. Sucb discovery, it is apparent, did not take place until bis attention was called to tbe subject by respondent’s brief upon tbe former appeal, whereupon be dismissed, paid tbe costs- in tbis court, and promptly — indeed, too promptly, perhaps— made a motion seeking one form of relief. Conceding that, because tbe first order to show cause was signed before tbe record and remittitur reached tbe county court of Dodge county, tbe defendant bad a right to object to further proceedings thereunder, still any delay thereby resulting was due to such objection, and not to appellant. There was no jurisdictional obstacle whatever to the court’s considering the application for leave to serve a new bill of exceptions on the 26th day of November, 1901. Tbe record was then in [400] that court, and respondent, if anxious for expedition, could then have offered and presented any objections that he had to such motion on its merits. On the contrary, he raised the technical objection to the manner in which notice had been given to him, and thereby invoked the ruling of the court that the motion could not be heard, and imposed upon the appellant the necessity of commencing over. Had the /subject been taken up promptly at that time in the spirit of remedying the excusable omission, no reason is apparent why relief might not have been granted, so that a new appeal could have been perfected for the January, 1902, term. It was the going down of that first motion which removed that possibility, and carried the time of hearing past that when an appeal could have been perfected for the January term. After that motion went down, the plaintiff’s further applications were unquestionably characterized by diligence. As soon as informed of the action which the court had taken, he renewed the motion, which, being denied, he at once presented his motion to amend the bill of exceptions, upon which was made the order now appealed from. The record fails to disclose any failure of diligence on appellant’s part to support the charge of laches. Next it is contended that the denial of the motion to grant plaintiff leave to serve and settle a new bill of exceptions and to extend the statutory time thereof was res adjudícala of the questions presented on plaintiff’s motion to amend by merely inserting the omitted exceptions to the findings. Without pausing to discuss how far, if at all, the denial of a motion upon matters of practice is ever res adjudícala as against a renewal of the same motion (see Castle v. Madison, 113 Wis. 346, 89 N. W. 156), it must be apparent upon inspection that the relief sought by the motion to amend was not necessarily considered or passed upon in the motion for leave to serve and settle a new bill of exceptions, accompanied by an application for the necessary extension of time. That motion was opposed by the respondent and apparently denied by the court [401] because of tbe length of time involved in the procedure. To settle a bill of exceptions involved tbe preparation and service of a voluminous document, and considerable period of time for tbe respondent to serve amendments, and then statutory periods of notice for the settlement of those amendments by tbe court. It was made apparent that all that was necessary for plaintiffs relief was tbe addition of a few pag’es of exceptions already on file in court, tbe authenticity of which was in no wise in dispute, and which could be accomplished without the machinery and delay involved in the service and settlement of a new bill. There is much in the order of the court to make apparent that this very distinction, namely, the protracted delay, was deemed a cogent reason for refusing that first motion, without deciding upon the propriety of summarily amending the bill in the respect desired upon application being made. Further, the action of the court upon the later motion is well-nigh conclusive that the judge did not consider that in his previous order he had exhausted his power to consider an application to amend, for the order appealed from does amend that bill in one of the respects sought by the motion, but so as to deny any curing of the fatal omission. The court amended, but it did not supply the omitted exceptions. The record therefore does not disclose any prior decision of the question presented by appellant’s last motion, nor any reason why the court might not have considered and decided the merits thereof. One further objection, urged both in the court below and here to the granting of plaintiffs motion, is that it will make necessary for defendant’s protection the incorporation into the bill of exceptions of certain additional evidence and her own requests to find and exceptions reserved. If this appears to be so, of course that privilege could have been accorded her as one of the terms upon which plaintiffs requested amendment was to be allowed. [402] Tbe duty of the trial court was plain to supply the omission of appellant’s exceptions from the bill in the interest of justice, and to enable review on appeal of the merits. None of the objections urged thereto were tenable, and the conclusion is irresistible that sound judicial discretion was not exercised in making the order appealed from. By the Court. — The order appealed from is reversed, and the cause remanded with directions to grant appellant’s motion to amend the bill of exceptions upon such terms' as may be just, and for further proceedings according to law.