Schulteis v. Trade Press Publishing Co.

Stevens, J. 1. Appellant bases his demand for relief wholly upon the ground that the civil court judgment was procured by fraud and false swearing. No witness was sworn when this judgment was entered by default. The only oath administered on which the judgment was based was that by which the complaint was verified. The claim that the judgment was procured by false swearing is based entirely on the fact that this verified complaint alleged that the plaintiff and Mau were copartners, when in fact they were stockholders in a legally organized corporation doing business under the name of the United Printing Company. The rule is well settled that the fact that a judgment is obtained by perjury is sufficient ground for equitable relief. Boring v. Ott, 138 Wis. 260, 266, 119 N. W. 865. But it is equally well settled that such relief will not be granted to one who is guilty of inexcusable neglect in asserting his right to such relief. Boring v. Ott, 138 Wis. 260, 271, 119 N. W. 865. Plaintiff's delay of approximately eleven months after personal service of process upon him, without the suggestion of any excuse for such delay, warranted the court in finding plaintiff guilty of such inexcusable neglect as to bar his right to equitable relief. 2. The court properly gave defendant judgment for $52.50 expended by the defendant for attorneys’ fees for services rendered in procuring the dissolution of the temporary injunction entered in this case. No formal motion [166] to dissolve this temporary injunction was made before the trial. But the matter was presented to the court on a hearing held with reference to the sufficiency of the sureties on the injunctional bond. The matter was agaiñ presented when the case was tried upon the merits. After the case was decided upon the merits, the procedure for fixing damages outlined by sec. 268.07 of the Statutes was substantially followed. The fact that the damages were fixed by the findings and not by a separate order entered subsequent to judgment did not prejudice the rights of the plaintiff. By the Court. — Judgment affirmed.