Frost v. Meyer

KerwiN, J.

It is insisted on the part of the appellants that, this being an action in ejectment, the court had no jurisdiction to vacate the judgment and grant a new trial, except upon condition that the costs be paid and an undertaking filed as provided in sec. 3092, Stats. (1898), and the conditions of said section have not been complied with. As we understand appellants’ contention, it is claimed that the new trial provided for in sec. 3092, Stats. (1898), is exclusive, and that the court had no power to vacate the judgment and grant a new trial otherwise than in accordance with the provisions of this section. We do not so understand the statute. The ordinary motion for a new trial and to vacate the judgment during the term for the purpose of granting a new trial on account of error committed on the trial applies as well in actions of ejectment as other actions. People ex rel. Gilman v. Wayne Circuit Judge, 21 Mich. 372 . The cases cited by counsel for appellants upon this proposition have reference to new trials granted under the provisions of sec. 3092, Stats. (1898), therefore are not applicable to the case of a new trial granted under the general provisions of law respecting new trials.

But it is contended that the order vacating the judgment was not made at the same term. It appears from the record that this order was made on the 16th day of October, 1905, at the general term of the Ashland county circuit court, which was a special term for the circuit court for Iron county. There can be no doubt but that the order of Oc *259 tober 16, 1905, was made at tbe same term at wbicb the judgment was entered. Judgment was entered by the clerk on the 18th day of August, 1905. The terms of court for Iron county at the time in question commenced on the second Monday in June and the first Wednesday in November, and the terms of court for Ashland county commenced on the second Monday in April and the third Monday in September. Under the statute each term of court shall not end until the beginning of the succeeding term, unless an express order for final adjournment be made and entered before the commencement of the next succeeding term in the same county. Sec. 2424, Stats. (1898), as amended by Laws of 1905, ch. 6, sec. 6, p. 12. It does not appear from the record that the Iron county circuit court term beginning on the second Monday in June had been adjourned and the Ashland county term beginning on the second Monday in April was in session and a special term for Iron county circuit court on the 16th day of October, 1905, when the order was made, the Iron county term at which the judgment was entered not expiring until the first Wednesday in November, a later date than. October 16th. So it is clear from the record that the .order was made at the same term at which judgment was entered. The mere fact that the order was filed with the clerk November 10th, after the expiration of the term, did not make it an order after the term. When the order was signed on the 16th day of October it then became the order of the court. It is argued by counsel for appellants that because the order recites that it was made at the general term of the circuit court for Ashland county, which was a special term for Iron county “begun and held on the 16th day of October, 1905,” and the term not commencing on the 16th day of October, this recital shows or tends to show that the order was not made at the same term. It is very obvious from the whole record that the recital simply had reference to the time when the order was made and -not to the time of the commencement of the term, and *260 that the order was in fact made on tbe 16tb day of October at a general term of the Ashland county circuit court. Emerson v. Huss, 127 Wis. 215 , 106 N. W. 518 , is relied upon by the appellants as authority for their position, and counsel for respondent appears to concede that it is authority but insists that it ought not to be followed. We do not find it necessary to review the decision in Emerson v. Huss, because .the case at bar is clearly distinguishable. The terms of Iron county and Ashland county were current when the order vacating the judgment was made, as we have heretofore shown, while in Emerson v. Muss an order was made in Taylor county in an action commenced in Price county, and after the expiration of the term in Taylor county the order made in the latter county was reviewed in Ashland county. So it will be seen that the general term of Taylor county, which was a special term for Price county, had expired when the order was reviewed in Ashland county. Without going into a discussion of the merits of the decision in Emerson v. Muss, we think it clear that in the case before us the order of October 16th was made at the same term that the judgment was entered.

It is further contended that the order vacating the judgment and granting a new trial could not be made except upon notice. It appears from the record that the motion for a new trial was made before judgment was entered and no notice of motion for a new trial was necessary. Mansen v. Fish, 27 Wis. 535 . The motion for a new trial having been made at the same term and before entry of judgment, it was dearly within the power of the court to vacate and set aside the judgment and grant a new trial without notice. Brown v. Brown, 53 Wis. 29 , 9 N. W. 790 ; Servatius v. Pickel, 30 Wis. 507 ; Ætna L. Ins. Co. v. McCormick, 20 Wis. 265 ; Smith v. Milwaukee E. R. & L. Co. 119 Wis. 336 , 96 N. W. 823 ; Hansen v. Fish, supra. We are cited by counsel for appellants to Wheeler v. Russell, 93 Wis. 135 , *261 67 N. W. 43 , and Bailey v. Costello, 94 Wis. 87 , 68 N. W. 663 . But it will be seen that Wheeler v. Russell, supra, turns upon the fact that there was no motion to set aside the judgment, but simply for a new trial, while in the case before us the records show that there was not only a motion for .a new trial which was made before entry of judgment, but the order also recited that a motion to set aside the judgment was made. So in effect the motion for a new trial in the case before us was supplemented by a motion to set aside the judgment. Bailey v. Costello, supra, is a case in which the motion for new trial was made after judgment.

It is further insisted that the amendment to the order made on the 16th day of October, 1905, which amendment was made December 28, 1906, and after the expiration of the term, was error because the court had no power to change the order after the term. It is well settled that the court at a subsequent term may correct a judgment or order on account of clerical error or mistake in matter of form in the entry of an order or judgment. Ætna, L. Ins. Co. v. McCormick, 2 0 Wis. 265 ; Packard v. Kinzie Ave. H. Co. 105 Wis. 323, 325 , 81 N. W. 488 , and cases there cited. It is obvious from the record in this case that the omission of the words from the original order, embraced in the amendment, was a mere mistake, inadvertence, or clerical error. This appears from the amendment itself, which states that they were omitted from the order by inadvertence, as well as from the whole record.

It is argued that the court erred in not imposing costs as a condition of a new trial, on the ground thatj no reason for granting a new trial being stated in the order and the reason not appearing, the court should have imposed costs of the former trial as a condition, and the following cases are cited in support of this contention: Schraer v. Stefan, 80 Wis. 653 , 50 N. W. 778 ; Garny v. Katz, 86 Wis. 321 , 56 N. W. 912 ; Cameron v. Mount, 86 Wis. 477 , 56 N. W. 1094 . *262 It is true that the aboye cases cited appear to support the contention of the appellants. But it will be found that later cases in this court hold a different doctrine, notably Second Nat. Bank v. Smith, 118 Wis. 18 , 94 N. W. 664 ; Wolfgram v. Schoepke, 123 Wis. 19, 23 , 100 N. W. 1054 ; Giese v. Milwaukee E. R. & L. Co, 116 Wis. 66, 69 , 92 N. W. 356 . In Second Nat. Bank v. Smith, supra, at p. 24, the court in referring to this subject said:

“When such a motion is granted without the assignment of reasons, as here, the presumption is that it was granted for error of the jury, or because the court was dissatisfied with the verdict, as being inconsistent or against the weight of the evidence, if terms be imposed; but, if terms be not imposed, then the presumption is that it was granted because of errors of thé court, or because the court regarded the verdict perverse. Giese v. Milwaukee E. R. & L. Co. 116 Wis. 66 , 92 N. W. 357 .”

This doctrine seems to be the reasonable and logical one and is supported by the authorities holding that the presumption is in favor of lawful action of the court, and where it appears from the record upon which the motion for a new trial is based that the court might have ordered a new trial on account of errors not requiring the imposition of terms, as for example for errors of the court or because the court regarded the verdict perverse, it must be presumed that it was granted for errors not requiring'the imposition of terms. So we hold that, the new trial being granted without costs and no grounds being stated in the order, the presumption is, nothing appearing in the record to the contrary, that it was granted for errors not requiring the imposition of terms. In so far as former decisions in this court are in conflict with the foregoing rule they must be regarded as overruled. It follows from what has been said that the orders appealed from must be affirmed.

By the Cowrt. — So ordered.