Brihm v. Ætna Insurance Co. of Hartford

211 N.W. 759, 191 Wis. 633, 1927 Wisc. LEXIS 96

• Court: Wisconsin Supreme Court
• Decided: January 11, 1927
• Status: Published

Opinion

Eschweiler, J.

The court below relieved the defendant from the default judgment, excused its delay in serving an answer, and permitted such to be presently done pursuant to sec. 269.46, Stats., which provides that such relief may be granted “in discretion and upon such terms as may be just.” Appellant contends that there was here an abuse of judicial discretion in the fixing of such a substantial sum as terms. It relies upon Port Huron E. & T. Co. v. Clements, 113 Wis. 249, 89 N. W. 160, the cases there cited at p. 258, and other cases.

It is not disputed but that defendant, upon proper procedure taken within the time for and before answering, would have been entitled to remove the cause to the federal court. It failed, however, to follow the required steps, and the services and expenses included in the allowed items were consequent upon such efforts on its part. The plaintiff was within his rights, under our procedure, in taking the default judgment as he did, and then, to maintain his position in court, he was compelled to follow the defendant in its vain wanderings around the circle. While the required amount is large compared with that allowed in the cases supra, and others such as Sawicki v. Wulff, 169 Wis. 377, 172 N. W. 722, and Wessling v. Hieb, 180 Wis. 160, 192 N. W. 458, yet we are not ready to say that the requirement of the payment of the expenses reasonably incurred by respondent in the cause, intermediate the defendant’s default and the vacating of the judgment, is in abuse of the judicial discretion that the court below might exercise. The $5 error in computation will undoubtedly be corrected without formal proceedings being necessary here or below.

By the Court. — Order affirmed.