Commercial Bank v. McAuliffe

Wisconsin Supreme Court

Commercial Bank v. McAuliffe

66 N.W. 110, 92 Wis. 242, 1896 Wisc. LEXIS 259

CourtWisconsin Supreme Court

DecidedJanuary 28, 1896

StatusPublished

Cited by4 cases

This text of 66 N.W. 110 (Commercial Bank v. McAuliffe) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commercial Bank v. McAuliffe, 66 N.W. 110, 92 Wis. 242, 1896 Wisc. LEXIS 259 (Wis. 1896).

Pincite

Opinion

WinsLow, J.

Under sec. 2832, B. S., the court had power, in its discretion, to vacate the final order and allow objections to be filed, if it appeared that the failure to appear on the hearing arose “ through mistake, inadvertence, surprise or excusable neglect.” Certainly it is very clear that the failure of the Silkman Company to appear arose from the fact that its officers did not receive any notice of the final hearing, and did not know of such hearing. This clearly justified the court in vacating the order and opening the default.

Nor does the fact that the statute (B. S. sec. 1701) provides that such final order shall be “conclusive upon all parties ” prevent the court from vacating it for good cause shown. The word “ conclusive,” as here used, means simply that Avhile it stands unreversed it binds all parties to the proceeding, just as a judgment is “conclusive” because it binds all parties to the action. It has never been supposed that, because a judgment is conclusive upon all parties, it was beyond the power of the court to vacate it upon a proper showing.

Objection is made to that part of the order providing for a reference of the objections to the account, and it is said that the general statute authorizing references (B. S. sec. 28G4) only applies to actions, whereas this is a special pro-[245]*245ceediug. Even if this he so (which we do not decide), the reference is proper. In administering the trusts under a voluntary assignment, the circuit court exercises its inherent powers as a court of chancery of general jurisdiction under the constitution, as well as the powers directly prescribed and defined in the assignment law. Const, art. YII, sec. 8; Revisers’ Rote to sec. 1693, R. S. The power of a court of chancery to refer issues such as the one before us, when they arise in actions or proceedings, is too ancient and well established to be now questioned.

By the Court.— Order affirmed.

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WinsLow, J.

Under sec. 2832, B. S., the court had power, in its discretion, to vacate the final order and allow objections to be filed, if it appeared that the failure to appear on the hearing arose “ through mistake, inadvertence, surprise or excusable neglect.” Certainly it is very clear that the failure of the Silkman Company to appear arose from the fact that its officers did not receive any notice of the final hearing, and did not know of such hearing. This clearly justified the court in vacating the order and opening the default.

Nor does the fact that the statute (B. S. sec. 1701) provides that such final order shall be “conclusive upon all parties ” prevent the court from vacating it for good cause shown. The word “ conclusive,” as here used, means simply that Avhile it stands unreversed it binds all parties to the proceeding, just as a judgment is “conclusive” because it binds all parties to the action. It has never been supposed that, because a judgment is conclusive upon all parties, it was beyond the power of the court to vacate it upon a proper showing.

Objection is made to that part of the order providing for a reference of the objections to the account, and it is said that the general statute authorizing references (B. S. sec. 28G4) only applies to actions, whereas this is a special pro-[245]*245ceediug. Even if this he so (which we do not decide), the reference is proper. In administering the trusts under a voluntary assignment, the circuit court exercises its inherent powers as a court of chancery of general jurisdiction under the constitution, as well as the powers directly prescribed and defined in the assignment law. Const, art. YII, sec. 8; Revisers’ Rote to sec. 1693, R. S. The power of a court of chancery to refer issues such as the one before us, when they arise in actions or proceedings, is too ancient and well established to be now questioned.

By the Court.— Order affirmed.

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Bluebook (online)

66 N.W. 110, 92 Wis. 242, 1896 Wisc. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-bank-v-mcauliffe-wis-1896.

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