Stilson v. Rankin

Ryan, C. J.

The respondent and one of his codefendants severally answered the complaint, each claiming to be a judgement creditor of the mortgagor, and each impeaching the consideration of the mortgage on like grounds, upon information and belief. Neither of them made any affidavit of merits, on the motion to vacate the judgment; nor any one for them, except one of the respondent’s attorneys. This gentleman states in his affidavit, that, from the respondent’s statement of the case to him, he believes that the respondent has a good and substantial defense upon the merits. This is not a sufficient affidavit of merits. Holden v. Kirby, 21 Wis., 149 . It says very little, if anything, more than that the attorney drew and filed the answer in good faith, on the instructions of his client. The verification of the respondent’s answer states only his belief in the defense; neither the verification nor the affidavit assumes to state any fact; and the affidavit may well signify only that the attorney believes to be good in law the defense which his client believes to be true in fact. Something more substantial is necessary by way of affidavit of merits, to disturb a judgment regularly entered.

The respondent and his codefendant were respectively represented by two firms of attorneys. One of the respondent’s attorneys was called out of the state as a witness, and was detained by sickness until after the judgment had been rendered. This is undoubtedly a sufficient excuse for his personal failure to appear on the trial. During Ms absence, the cause being noticed for trial on both sides, his partner left the state upon a journey of pleasure, and remained out of the state until after the trial. It is .true that the former of these gentlemen had the principal charge of the respondent’s case. But assuming the respondent to have had a good defense, the voluntary absence of the latter of these gentlemen, while his partner was *531 away, would liave been gross negligence, if the respondent’s case bad not been left in charge of some one else.

And so it appears that one of the attorneys of the respondent’s codefendant, when the cause was called for trial, presented the respondent’s affidavit for continuance, and moved a continuance upon it. This motion being overruled, the same gentleman proposed to file the respondent’s affidavit of the prejudice of the judge, then in his possession, though not in court; for which the court declined to wait, upon the ground that such an affidavit of one defendant, separately defending, would be insufficient to change the place of trial. Rupp v. Swineford, ante, p. 28.

Neither defendant had issued any subpoena or made other preparation looking towards a trial. And it is difficult to avoid the double conclusion, that the respondent and his code-fendant relied on a postponement of the trial, either by continuance or by change of venue; and that, for this purpose, the respondent was fully represented by his codefendant’s attorney when the cause was reached for trial.

The facts do not appear to us to establish a case of surprise, mistake or excusable neglect for the respondent. And they impress us with the belief that the ex jpa/rte trial and judgment deprived him rather of an opportunity to postpone the trial and judgment, than of the opportunity of making a valid and meritorious defense. The motion was made within the term of judgment. And the court below, therefore, retained large discretionary power over the judgment. It. v. It., 20 "Wis., 331. But we cannot think the respondent’s application showed sufficient grounds for the exercise of that power. Burnham v. Smith, 11 Wis., 258 ; Omro v. Ward, 19 id., 232. And we cannot hold that a judgment, following upon trial of a cause in its order upon the calendar, and free from all irregularity, should be disturbed, even at the same term, unless the party complaining of it show reasonable excuse for his failure to resist it, and reasonable presumption that it does *532 Rim substantial injustice. Had the ordei’ vacating the judgment provided for immediate trial of the issue, at the election of the appellant, we might have hesitated to reverse it. But the respondent appears to have gained by it just what he had failed to accomplish by his affidavit for continuance and his affidavit of prejudice. And we cannot hold that the appellant’s right should be postponed by such diverse and pertinacious efforts at delay, without a far stronger showing of meritorious defense. The indulgence of the court below to the respondent, after his affidavit of prejudice, suggests grave comment upon the abuse of such affidavits, and the recklessness with which judicial prejudice is imputed.

We make this decision with the less doubt, because we think that the order denying respondent’s motion should give him leave, if he can, to make a more satisfactory application to vacate the judgment under sec. 38, ch. 12o, R. S.

By the Court. — The order of the court below is reversed, and the cause remanded with directions to deny the motion to vacate the judgment.

OPINION IN THE SECOND CASE.

Cole, J.

The questions arising on this appeal are quite similar to those involved in Stilson v. Rankin, decided at the present term. In accordance with the decision there made, the order setting aside the judgment must be reversed. There are some facts appearing in the affidavit used in opposition to the motion to set aside the judgment, which rendered the application less meritorious than in the Stilson case; but we do not deem it necessary to dwell upon them. We hold that the judgment was improperly set aside, and our reasons for this conclusion are fully given in the other case.

By the Cowrt. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.