Wessling v. Hieb

Doerfler, J. The judgment notes in question contained the usual provision for a release of errors, and, no irregularity or error appearing on the face, of the record, no relief could be granted by this court from the judgment on an appeal. It is also the rule that a judgment upon confession, entered in a court having jurisdiction, is supported by the same presumptions with respect to the regularity of the proceedings, the sufficiency of the pleadings and evidence, and other matters essential to its validity as a judgment in a contested action. 23 Cyc. 720, and cases cited in note 90. The rule has also been laid down that while a judgment by confession operates as a release of errors and therefore cannot ordinarily be carried up by appeal or certiorari, yet courts of law exercise an equitable jurisdiction over judgments entered in this way, and have power, in the exercise of a sound discretion, to open, vacate, or set aside such a judgment for good cause shown. 23 Cyc. 721, 722; Second Ward Sav. Bank v. Schranck, 97 Wis. 250, 73 N. W. [165] 31, 39 L. R. A. 569; McCabe v. Sumner, 40 Wis. 386; Brown v. Parker, 28 Wis. 21. Plaintiff’s counsel strenuously contend that the equitable power above referred to, and the right to a bill of review as it existed under the former practice, under the decisions in Crowns v. Forest L. Co. 102 Wis. 97, 78 N. W. 433; Zinc C. Co. v. First Nat. Bank, 103 Wis. 125, 79 N. W. 229; Bloor v. Smith, 112 Wis. 340, 87 N. W. 870, and in other cases, have been merged by the Code in the provisions of sec. 2832 of the Statutes,- which reads as follows: “Relief from judgments and orders. Section 2832. The court or a judge may likewise, in discretion and upon such terms as may be just, at any time within one year after notite thereof, relieve a party from a judgment, order, stipulation or other proceeding against him, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceedings; and whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of law the court may, in like manner and upon like terms, permit an amendment of such proceeding so as to make it conformable thereto.” Assuming the correctness of the contention of plaintiff’s counsel, let us examine this application in order .to ascertain whether or not the same can be deemed properly to come within the purview of said section of the statutes. Taking the averments in defendant’s affidavits in support of the application as true, the notes were executed at a time when the defendant.had no knowledge whatever as to the falsity of the alleged fraudulent statements which the defendant claims were the inducing cause-of his purchase of the stock. The alleged fraud came to his knowledge a considerable period of time after the execution of the notes. The notes themselves are regular on their face; and unless they were procured by fraud or were subject to other defenses, particularly those coming to defendant’s knowledge or springing into being after their execution, no relief can be granted [166] tinder said section of the statutes. In the instant case the trial court, for the purpose of this application, determined that a proper defense was set forth in defendant’s affidavits.' It is alleged that the stock sold to the defendant was the property of the plaintiff. This allegation is specifically denied by the plaintiff. It is also alleged in defendant’s affidavit that the plaintiff represented that the book value of the stock was $32.50 per share. The making of this representation is also denied in plaintiff’s affidavit. If such representation as to book value was made and was false, and was made with a fraudulent intent, for the purpose of inducing the defendant to purchase, then it cannot be successfully maintained that such representation so made was not with reference to an existing material fact. Defendant avers that the notes were executed and delivered to the plaintiff because he purchased the stock from him. According to plaintiff’s affidavits, such notes Were made payable to the plaintiff at the request of the defendant, for the reason that defendant objected to the delivery of any more of his notes to said Fitzgerald. So that, upon the record, there is a sharp' conflict as to all of the material allegations in the affidavits of the parties, which can only be solved in a proper manner by a trial of the issues so raised. It. may be said, however, at this point that the execution of these notes to the plaintiff and their -delivery to him may have been very persuasive to the trial court. It is not strenuously contended by defendant’s counsel that the application was made on account of either mistake, inadvertence, or excusable neglect; on the contrary, it appears to be based upon the element.of surprise. Defendant and his' counsel in their affidavits on file expressly aver that when they called upon the plaintiff in the city of Chicago in the months of January and February, 1921, they rescinded the purchase, tendered back the stock, and demanded a return of the notes and of the cash, and that the plaintiff thereupon agreed to return the notes as soon as [167] the indebtedness of said Fitzgerald to the plaintiff had been paid. The defendant’s visit to Chicago in February was after the date of the maturity of the notes and after payment had been demanded. If these statements contained in defendánt’s affidavit are in accordance with the truth, then the promise or agreement of the plaintiff to return the notes created a situation pursuant to which the defendant was relieved from taking prompt action to protect himself from a judgment on the notes. The judgment entered in May, 1921, in the lower court may well be déemed, therefore, to furnish the element of surprise contemplated by sec. 2832, Stats. It will appear from the reported cases involving the opening of judgments on cognovits that courts generally have evinced great liberality in affording relief, and this is especially so in respect to cases involving the element of fraud and where defenses have arisen'--subsequent to the execution of the notes. It is the policy of the law to afford all litigants a day in court and an impartial trial upon material issues involved and presented. Without this attitude it can be readily seen that great injustice frequently may be perpetrated in such a manner as to afford the injured party no adequate relief. But while this court 'has construed the provisions of sec. 2832, which is a remedial statute, liberally for the purpose of accomplishing the ends for which the statute was passed, nevertheless it is incumbent upon those relying upon the statute to comply reasonably with all the requirements involved in the opening of judgments. However, a motion under this section is addressed to the sound discretion of the court, and it has been held that a strong case of its abuse must exist in order to reverse it. Kalckhoff v. Zoehrlaut, 43 Wis. 373; Seymour v. Chippewa Co. 40 Wis. 62. In the instant case the order opening the judgment was made and entered more than one year after the rendition thereof. According to the uncontradicted averments in the [168] affidavits filed by the defendant, knowledge or notice of the entry of the judgment did not come to him until some time in September, 1921, and while the order appealed from was entered in July, 1922, such order was made within the one-year period after notice or knowledge of the entry of the judgment came to the defendant. It was therefore timely. Turner v. Leathem, 84 Wis. 633, 54 N. W. 1001; Butler v. Mitchell, 17 Wis. 52. Reasonable' protection lias been afforded plaintiff under that provision of the order wherein the judgment is per-blitted to stand as security to any claim which the plaintiff might ultimately establish on the final outcome of the trial. Under the facts and circumstances above referred to, therefore, we hold that the order of the trial court was proper and cannot be disturbed. By the Court. — Order affirmed.