Heinemann v. Le Clair

Wisconsin Supreme Court

Heinemann v. Le Clair

51 N.W. 1101, 82 Wis. 135, 1892 Wisc. LEXIS 115

CourtWisconsin Supreme Court

DecidedApril 12, 1892

StatusPublished

Cited by1 cases

This text of 51 N.W. 1101 (Heinemann v. Le Clair) 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

Heinemann v. Le Clair, 51 N.W. 1101, 82 Wis. 135, 1892 Wisc. LEXIS 115 (Wis. 1892).

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Opinion

LyoN, C. J.

There is little to be said on this appeal. Although the plaintiffs are not bound by the verbal stipulation of their attorney, yet, on the question of inadvertence or excusable neglect on the part of the defendant, some weight must be given to the fact that, whether with or without conditions, plaintiffs’ attorney verbally agreed to extend for a few days the time to'answer. Manifestly the defendant believed he had obtained such extension, although the stipulation to that effect rested in parol, and hence his delay for two days to serve his answer. The proposed answer shows a complete defense to the action, and we think the court went beyond the limits of reasonable discretion when it refused to open the default on proper terms. One of these might have been that the case should be placed on the June calendar for trial without no[137]*137tice. This would have protected the plaintiff from loss of the term by reason of the default, and at the same time would have saved the defendant from the consequences of his inadvertence or excusable neglect to answer in time, so far as it could reasonably be done. This state of facts presents a persuasive case for relief. We think the defendant should be allowed to answer on such terms as to the circuit court shall seem just.

By the Court.— The order is reversed, and the circuit court is directed to proceed in the action in accordance with this opinion.

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LyoN, C. J.

There is little to be said on this appeal. Although the plaintiffs are not bound by the verbal stipulation of their attorney, yet, on the question of inadvertence or excusable neglect on the part of the defendant, some weight must be given to the fact that, whether with or without conditions, plaintiffs’ attorney verbally agreed to extend for a few days the time to'answer. Manifestly the defendant believed he had obtained such extension, although the stipulation to that effect rested in parol, and hence his delay for two days to serve his answer. The proposed answer shows a complete defense to the action, and we think the court went beyond the limits of reasonable discretion when it refused to open the default on proper terms. One of these might have been that the case should be placed on the June calendar for trial without no[137]*137tice. This would have protected the plaintiff from loss of the term by reason of the default, and at the same time would have saved the defendant from the consequences of his inadvertence or excusable neglect to answer in time, so far as it could reasonably be done. This state of facts presents a persuasive case for relief. We think the defendant should be allowed to answer on such terms as to the circuit court shall seem just.

By the Court.— The order is reversed, and the circuit court is directed to proceed in the action in accordance with this opinion.

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Bluebook (online)

51 N.W. 1101, 82 Wis. 135, 1892 Wisc. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heinemann-v-le-clair-wis-1892.

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