Turner v. Leathem

Cassoday, J.

It appears from the record, in effect, that the défendants purchased and received conveyances of a large quantity of lands from one Balter, November 29,1887; that such lands included the lands in question, for which they paid Baker $800; that in making such purchase Baker represented that the title to all of said lands was good, and that he would defend the same; that at the time the summons in this action was served upon the defendants there was also served upon them a summons in each of six other actions in favor of other parties, concerning other lands; that the defendants, relying upon said Baker’s promise to defend such titles, thereupon delivered to said Baker all of *635 said summonses, including the one in this action; that said Baker thereupon retained an attorney at law to defend said several actions, and, as he supposed, delivered to him all of said summonses, and was advised by his said attorney that he had a good defense upon the merits to each and all of said actions; that said Baker then and there instructed his said attorney to take all necessary steps to successfully defend each and all of said actions ;■ that, as it afterwards appeared, the said Baker, through some inadvertence or mistake, neglected to deliver to his said attorney the summons in this action, and hence judgment was taken therein by default.

It is contended with much vigor that the court had no power to relieve the defendants from the judgment after the expiration of the year. The court may, m its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order,"or other proceeding against him, through his mistake, inadvertence, surprise, or excusable neglect. Sec. 2832, R. S.; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 86 , and cases there cited; Wheeler & W. Mfg. Co. v. Monahan, 63 Wis. 194 ; Whereatt v. Ellis, 70 Wis. 207 . Here it appears that neither Baker nor either of the defendants learned of the action or judgment by default until some time after the commencement of the replevin suit mentioned in the foregoing statement, April 10, 1891, and just before proceedings "were instituted to open such default. The case made was clearly within the discretion of the court, and the terms imposed appear to have been just to all parties. The order was made within one year after such notice, and hence there can be no question but that the court had power to make the same.

By the Court.— The order of the circuit court is affirmed.