Kremer v. Sponholz

MaRshall, J.

The appellants’ application was addressed to the sound discretion of the court and, therefore, the result cannot he successfully attacked except for abuse of such discretion. That is elementary. True, as counsel for appellants contends, that rule contemplates the exercise of legal discretion, — that is that the trial judge shall exercise sound judgment upon the facts and circumstances of the case, recognizing the spirit of the Code that every person háving within reasonable probabilities, apparently, a meritorious cause of action or defense shall have an opportunity to present the same for adjudication, if he acts within the time limited by the statute, notwithstanding any neglect which is reasonably excusable, on such terms as will fairly make the opposite party good for the disturbance of his situation by the mere reason of delay.

One of the most important essentials in an application of this sort is that the claim of the petitioner shall appear, from the allegations in the proposed answer and from the whole ease made, to he meritorious. Union L. Co. v. Chippewa Co. 47 Wis. 245 , 2 N. W. 281 ; Port Huron E. & T. Co. v. Clem ents, 113 Wis. 249, 255 , 89 N. W. 160 . The appellants at the outset faced an adjudication of the court, unappealed from, that the summons was regularly served on them and that their sworn statements to the contrary were untrue. The trial court in view of that situation was well warranted in concluding that their claim as to an agreement having been made that the property should he surrendered and an indeht- *554 edness for beer paid in satisfaction of the mortgage indebtedness shonld have some fair support in order to raise a probability that it could be established upon a trial. It conclusively appears that the allegations of the answer as to an agreement having been made with Valentin Blatz are untrue, because his death occurred two years prior to the happening of the circumstanc.es which it is conceded characterized such agreement, if any was ever made. Blatz died before the foreclosure action was commenced and before appellants commenced to-construct the new house to which they removed when they vacated the mortgaged premises. So the claim that they agreed with Blatz during the period of the construction of the new house, as claimed, cannot be true. * Again the idea that the appellants vacated the premises under an agreement, as they claim, making no conveyance to the holders of the mortgages in execution thereof, and that appellants nevertheless supposed respondents, for the period of some eight years which followed before the motion to open the foreclosure judgment was made, exercised control over the property as owners without any title other than a mere mortgage interest, is so, very-unreasonable that the court was warranted in disbelieving it. Further, since when Mr. Bponholz came to testify orally in. respect to the matter he made no mention of having made an agreement with Mr. Blatz, but claimed to have had some sort of an understanding with Mr. Fricke, as agent of respondents, as to vacating the premises, differing materially from the-agreement alleged in the answer, that warranted the court, especially in view of the testimony-of Mr. Fricke, in concluding that no agreement was made of the nature of that claimed by appellants. In the answer, as we have seen, it was alleged that defendants agreed to surrender the mortgaged premises- and Mr. Bponholz agreed to pay an indebtedness of his for beer in discharge of the mortgage indebtedness, while, when he came to testify orally, he said nothing whatever of a definite nature as to payment of the beer bill. He merely said! *555 that “there was a mutual understanding between Mr. Ericke and myself. I told him I was willing to vacate the property and turn it over without any law proceedings, and he said it was nice, and he gave me a promise to stay in there until my house was finished. It was not because of a judgment of foreclosure and sale. It was simply because there was a mortgage on the property. . . . There never was any suit.”

In view of the fact that there was a suit which had proceeded to judgment long before the date of the alleged understanding and the obvious falsity of the answer as to an agreement having been made with Valentin Blatz, and the highly unreasonable claim that an agreement somewhat similar to that so alleged was made with Mr. Ericke and that respondents took the property pursuant thereto without any conveyance being made to them by appellants, and in face of the much more reasonable claim of respondents, supported by proof, that appellants were notified in writing before the foreclosure suit was commenced that the property would not be taken in discharge of the mortgage indebtedness; that after the sale and sheriffs deed to respondents appellants were told of such judgment and requested to vacate the property, and were then at their request permitted to keep the same for a short time to enable them to finish their house, then in process of construction, — it seems that the trial court had a pretty sound basis for the conclusion that appellants’ plea that the mortgaged premises were surrendered in discharge of the mortgage indebtedness could not be established by them to the satisfaction of any court, if a defense of that sort were permitted to be interposed. Certainly the situation falls far short of satisfying the rule that a strong case of abuse of discretion must be shown to warrant reversing the determination of the trial court in such a matter as this. Seymour v. Chippewa Co. 40 Wis. 62 .

On an application of this sort the truth of the allegations of the proposed answer may properly be tested by the proofs *556 produced on tbe motion, to the extent of determining whether, in any reasonable probability, the claim of the defendant can be established on a trial, and if there is none, such answer, though meritorious in mere,words, may be condemned as un-meritorious in fact. That course was pursued here. The proposed answer on its face was meritorious, but the proofs produced on the motion showed that its material allegations could not be established by evidence; and the substitute therefor testified to, viz.,, the claimed understanding with Mr. Fricke, the trial court evidently concluded was without any substantial support. We cannot see our way clear to disturb •that conclusion.

By the Court. — The order is affirmed.