Burnham Bros. Brick Co. v. Riesen

Eschweiler, J. The order dismissing the cause for want of prosecution, it then having been pending more than three terms in the circuit court, was a then proper disposition of the cause under the rules of said court. That the order of dismissal was not followed by formal order in writing or by a judgment of dismissal is, under the situation in this case, immaterial. The direction from the bench for a dismissal was the action of the court, was complete, [528] definite, final, and sufficient. Allen v. Voje, 114 Wis. 1, 8, 89 N. W. 924; Wallis v. First Nat. Bank, 155 Wis. 533, 537, 538, 145 N. W. 195; Wehr v. Gimbel Brothers, 161 Wis. 485, 486, 154 N. W. 972; Will of Burghardt, 165 Wis. 312, 314, 162 N. W. 317. Such order of dismissal elided the proceedings, removed the litigation from the court, and then terminated the action. Wawrzyniakowski v. Hoffman & Billings Mfg. Co. 137 Wis. 629, 632, 119 N. W. 350. The effect of 'the Us pendens as notice to persons interested in the title to this real estate was of course lost on September 18, 1922, by the dismissal of the action of which the lis pendens as filed was notice. Although, as it appears from the affidavit of the defendant Rice, he knew in the latter part of 1922 that no adjustment of his claim was possible with the petitioners O’Brien, still nó attention was paid to the proceedings in court until more than one year had elapsed from the dismissal of September 18th. • In actions of this kind, affecting as they do the title to real estate and the possible rights of subsequent good-faith purchasers, a claimant asserting such a lien is bound in good faith and with reasonable diligence to prosecute his cause. Glass v. Zachow, 156 Wis. 21, 25, 145 N. W. 236. There was here exhibited lack of diligence in allowing the record to remain as it was for more than' a year after September 18, 1922, and sufficient justification for the order here in question. The order of October 22, 1923, purporting to set aside the dismissal order of September 18, 1922, was also properly set aside'as an improvident proceeding for several reasons. It was obtained ex parte, without the filing of affidavits and without notice to any one concerned or interested. While the O’Briens were not at that time nominal parties to the action, yet the defendant Rice and his attorney knew that the O’Briens either had succeeded or were contemplating succeeding to the interest of the Riesens in the' real [529] estate; yet no notice was given to either the O’Briens or to the Riesens either of the proposal to take the evidence on October 12th or of the motion of October 22d. That defendant Rice expected to bind the O’Briens’ interest in the property which they had purchased on October 2d by the judgment of November 8th is apparent from the prompt notification to the O’Briens of the entry of such judgment and demand for its immediate payment. While as a matter of form the entry of the judgment without prior notice of intention to taire the same, all the then parties to the record being either claimants whose liens had been paid or defendants who were in default, might successfully withstand an assault upon it if the case had been then properly pending, yet the entire situation as to failure to give such notices and the evident failure to inform either Judge Halsey or Judge Gregory in October and November, 1923, of the then situation of the O’Briens towards the property, were very proper considerations for the court in passing upon the equities involved in the hearing of the order here presented. It is the evident language of secs. 2831 and 2832, Stats., relied upon by appellant, and respectively authorizing the enlargement of time within which certain proceedings in an action may be taken and permitting relief from orders entered through the mistake, inadvertence, surprise, or excusable neglect of a party, to require that in making application under either of such provisions affidavits shall be presented showing the grounds upon which such relief is to be asked. In the application to Judge Gregory in October, 1923, for the vacating of his order of September, 1922, no record showing was made specifying the grounds upon which the claim for relief was based or of the reasons, if any, for the long delay and apparent laches on the part of defendant Rice in not learning of the dismissal of the action in the preceding year, or why the action had not been more diligently prosecuted, and why silence was maintained as to [530] the O’Briens succeeding to the interest of the Riesens. Therefore, as the record then stood and now stands, there was no proper showing made, under the statutes and rules of court, for the order of October 22, 1923, and the ex parte application of defendant Rice at that time could well have been and should have been then denied for want of proper showing. Rymer v. Mart, 168 Wis. 493, 496, 170 N. W. 714; Kingsley v. Steiger, 141 Wis. 447, 452, 123 N. W. 635. Upon the entire record, therefore, the court below was justified, upon the grounds we have above stated, in finally determining that the order made October 22, 1923, was improvident and should not have been entered.' That being so, there was no action pending in court at the time of the taking of the testimony before Judge Halsey on October 12th, nor at the time of the entry of the judgment of November 8, 1923, and the defendant Rice was properly enjoined from taking further proceedings upon such form of judgment. By the Court. — Order affirmed.