Schoenmann v. Hood

SiebecKeb, J. The application to open this judgment is one which calls for the exercise of a sound discretion of the court upon the facts alleged by the petitioner. It is alleged that the petitioner in this case is a surety on the notes upon which the judgment was awarded and which was opened by the order of the court. The facts alleged set up a defense under sec. 2316c, Stats. (Supp. 1906: Laws of 1903, ch. 122), and if established show that under the provisions of this statute the debt has been extinguished by the voluntary conduct of the plaintiffs. The facts alleged are sufficient to constitute a defense under this statute and they are sufficient to show a probability that the petitioner presents a legal defense to the notes, which, if established, will relieve her from all liability thereon. The facts and circumstances alleged show that she has not forfeited any right to defend upon the grounds alleged. The question then arises, Is the defense, as appellants contend, one she should not be permitted to interpose ? To say that the alleged defense is inequitable is to say that the rights conferred by the legislative enactment, as embodied in sec. 2316c, Stats., operate inequitably and should not be avail [243] able to a party in ait equitable proceeding. We cannot so regard tbe statute, and believe the courts must declare and enforce it as it stands and award to all persons witbin its purview tbe opportunity to enforce whatever rights they may have acquired under it. A very good reason for opening tbe judgment to let in tbe defense under this statute is that it rests on tbe voluntary acts of tbe plaintiffs in omitting to comply with tbe statute and thereby extinguishing a debt which would have subsisted bad they complied with tbe law. It is also alleged that tbe petitioner is a surety, and as such she is entitled to stand strictly on tbe rights tbe law affords her. We find tbe action of tbe trial court to be free from any abuse of judicial discretion. By the Court. — Tbe order appealed from is affirmed.