Ward v. Board of Trustees of Racine College

The following opinion was filed December 13, 1921: Rosenberry, J. We shall first consider the question raised by the appeal of the defendant, from the order entered August 17, 1921. The defendant claims that the court erred in two respects: First, in enlarging the time against objection so as to permit the filing of exceptions and the service of a bill of exceptions after the expiration of the time allowed for appeal; and second, in granting an enlargement of the time, no good cause therefor being shown. Upon the oral argument the defendant, for sufficient reasons, waived any claim under the first assignment of error, and we shall not further consider it. In Behnke v. Kroening, 174 Wis. 224, 182 N. W. 837, it was held that the court had power to settle a bill of exceptions although the year within which an appeal might be taken had expired. It is a power which should be exercised with caution and only in cases where the parties have brought themselves clearly within the rule, and should not be so exercised as to extend the time within which the rights of parties may become fixed in cases where the default is due to unexcused delay. In this case there is no affidavit from any one connected with the case prior to the substitution of attorneys on May 13, 1921. The plaintiff was advised of the adverse decision and an appeal recommended on August 10, 1920. On September 22d plaintiff’s agent, Joannis, wrote to Mr. Hardy that the plaintiff was “seriously considering” an appeal. Mr. Hardy, being a Wisconsin lawyer, must have known that a bill of exceptions should be settled within sixty [175] days or the time therefor extended. Just when this fact was drawn to the attention of the plaintiff’s Chicago attorney does not appear, but on December 24, 1920, Mr. Kretz-inger wrote Mr. Hardy “to complete the record, including transcript of evidence.” No effort was made to settle the bill, nothing was done until the defendant sought to enforce its judgment by garnishment, and even then the proceedings in the case do not indicate that it was pushed forward with very great expedition. In Schluckebier v. Babcock, 104 Wis. 293, 80 N. W. 435, where there was an unexcused delay of six months, a motion to enlarge the time to serve the bill of exceptions was held properly denied. ' In Colle v. K., G. B. & W. R. Co. 149 Wis. 96, 135 N. W. 536, want of satisfactory explanation of a delay of five months was held sufficient ground for denial of motion to enlarge time. In Breen v. Kennedy, 158 Wis. 48, 147 N. W. 996, motion made fifteen months after notice of entry of judgment, time for appeal then being two years, was held to justify the court in denying motion to settle the bill, although a transcript of the evidence had been paid for. We again call attention to the rule that upon applications of this character the application should be supported by the affidavit of persons having personal knowledge of the facts. Superior C. L. Co. v. Dunphy, 93 Wis. 188, 67 N. W. 428. The whole case being here upon the merits, the court has concluded not to determine the question raised on the appeal from the order, but we take this occasion to observe .that there is every reason for holding parties to a reasonably strict compliance with the rule. In recent years much has been said and written in regard to the delays incident to litigation, and it is only by the firm application of procedural rules by the trial courts that such delays can be prevented. Mere unexcused lapses should not avail a party, neither should trial courts take the view that the application for an [176] order to extend the time within which a bill may be settled is in any way personal to them because it may result in the denial of a right of appeal from a judgment of- the trial court. The question presented is much larger than that. It relates to the whole scope of the administration of the law, and if parties are not held to a reasonably strict rule one of the fundamental purposes of our system of jurisprudence, which, as declared by sec. 9, art. I, of the constitution, is that “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice .freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conform-ably to the laws,” will be defeated. There is no presumption that injustice is done a litigant by the judgment of the trial court. By statute he is given a right to a review, and the procedure by means of which such review may be had is prescribed and it should be adhered to in order that the constitutional declaration may be made effective. While discretion is vested in trial courts for the relief of parties who-, by reason of some excusable fault or neglect, have been deprived of the right given them, it should be exercised only where good and adequate cause is shown by the affidavits of persons' having personal knowledge of the facts, and where there is a delay for which no substantial, adequate reason is shown the party in default should not be relieved. Upon the plaintiff’s appeal it is strongly argued that the evidence does not sustain the findings of the trial court that the representations made by the plaintiff to the defendant were untrue and that the making of the contract was induced thereby. We shall not attempt to discuss or set out the entire evidence. Having in mind the rule that fraud must be established by clear and satisfactory evidence, we have carefully examined the record and are of opinion that the evidence amply sustains the trial court’s findings. The main controversy rélates to the so-called “system” of the [177] .plaintiff, which was represented by the plaintiff to be his personal property, that it was a system of raising money by voluntary gifts or contributions which was private -and peculiar to himself and was of such a character that it could not be disclosed until after the contract was signed. The evidence discloses no system in which the plaintiff had any property rights whatever. It was identically the method followed in most of the liberty loan and other money-raising campaigns during the war. The plaintiff offered evidence to show that it consisted of four things: First, the auditing of all the assets of the institution for which the campaign was to be made. This appears to be nothing more than making a list of the names of the alumni and others who were most likely to contribute. Second, the classifying and grouping of all the various factors which the plaintiff might discover and the education of the people involved by a process of publicity, specialized and general. There was nothing more nor less than the ordinary publicity campaign with a grouping of the various “assets” which were disclosed by the so-called audit. Third, the creation of public sentiment throughout the entire territory involved by speaking before special groups, and special literature sent out to the individuals. The creation of a public sentiment and furnishing printed matter in regard to the object and purposes of the campaign is an inseparable incident to every campaign. Fourth, the development of teams under the committees already grouped in the first part of the process by means of which the money will be finally gathered together for the institution. This means no more nor less, as applied, than the procuring of volunteers to circulate subscription lists. No new or novel plan was disclosed, and the plaintiff had no property right in any of the methods adopted, which were those in common use. By the plaintiff’s testimony upon the trial it appeared: “The peculiar feature of our campaign work is that we give it time exposure sufficient to allow the reaping of the [178] greatest amount of money from the territory. We operate by a system of twenty-one forms which we put in operation in five groups, each group playing its part at certain starts of the campaign. In that way allowing sufficient time to develop the territory. We differ from any other organization in the world.” It does not appear what the “time exposure” was. It remains a secret so far as this record discloses. Nor was the nature and character of the “twenty-one forms” explained to the defendant or at the trial. It was represented to the defendant, claimed upon the trial below, and argued here, that the plaintiff has a system. We have carefully examined the evidence and agree with the trial court that there was none. The whole scheme seemed to be an effort on the pail of the plaintiff to interpose himself between the defendant and its patrons for the purpose of enriching himself from such contributions as the defendant might receive. The representations, as the trial court found, were untrue. That Dr. Rogers, in executing the contract for the defendant, relied upon the representations, is too clear to admit of argument. A majority of the court are also of the opinion that there was a complete failure of consideration. The plaintiff had nothing to ■ deliver and delivered nothing, and created a situation by reason of which it became necessary to entirely abandon the campaign without the raising of a single dollar. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on February 7, 1922.