Guaranteed Investment Co. v. Van Metre

WiNslow, C. J. Five questions are presented, viz.: (1) Was tbe defendants’ right to a new trial under sec. 3092, Stats., waived by the oral stipulation made on the trial? (2) Was such right waived by the accepting of a quitclaim deed from the plaintiff of the six parcels adjudged to them ? (3) Had the court power in its discretion to extend the time for paying the costs and filing the undertaking after the time given by the statute had expired ? (4) If such discretionary power existed, was it abused? and (5) Was the payment of the costs into court a sufficient payment? These questions will be answered in their order as stated. 1. The right to a second trial in ejectment has been called an absolute right, and it is not to be denied except upon a clear showing of waiver. It can be waived by express agreement (Ladd v. Hildebrant, 27 Wis. 135), but it is not to be construed as waived by a mere stipulation of facts, even though it be in writing. Hewitt v. Wis. River L. Co. 81 Wis. 546, 51 N. W. 1016. The stipulation here was oral and hence not obligatory upon another trial. Circuit Court Eule V, sec. 3. We do not consider that it amounts to a waiver. 2. In the negotiations leading up to the quitclaim deed there was no suggestion by defendants that they relinquished any claim to the other six parcels, or that they proposed to waive any legal right which they had to further contest the plaintiff’s title thereto. The giving of the deed seems simply to have removed those six parcels from the field of controversy by mutual consent without express or implied suggestion that the question as to the title to the other six parcels was to be in any way affected. It was certainly competent for the parties to do this, and there is no suggestion [266] even now that tbe plaintiff can show good title to those parcels. We find no waiver here. 3. There can be no doubt of the power of the court, even after the expiration of the year, to extend the time for the filing of the undertaking and payment of costs. Dickinson v. Smith, 139 Wis. 1, 120 N. W. 406. 4. The affidavits filed by the defendants showed that the error in the order of July 12, 1913, by which the payment of costs and filing of the undertaking were authorized after' the expiration of the year was due to a mistake of counsel who advised their clients to that effect. Defaults occurring through the mistakes or ignorance of counsel may be relieved against. Whereatt v. Ellis, 70 Wis. 207, 35 N. W. 314; Wis. M. & F. Ins. Co. Bank v. Mann, 100 Wis. 596, 76 N. W. 777. We cannot say that there was. any abuse of .discretion. 5. The original order vacating the judgment and ordering a new trial provided that the taxed costs in the action should be paid “to the clerk.” . This was doubtless erroneous. Sec. 3092 requires that the costs “be paid,” and this means paid to the plaintiff. However, when the plaintiff moved to set aside the order this technical error was not made a ground of objection and the trial judge makes no mention of it in his carefully prepared opinion. Evidently the payment to the clerk, or “into court,” as it is termed in the order appealed from, was not' relied on as a defect. Of course the money could have been obtained by the plaintiff at any time from the clerk by simply applying for it. Under these circumstances the contention now made does not seem substantial. By the Gourt. — Order affirmed.