Howey v. Clifford

42 Wis. 561

• Court: Wisconsin Supreme Court
• Decided: August 15, 1877
• Status: Published

Opinion

LyoN, J.

If the defendant Clifford has the same standing in the circuit court as though he had joined in the appeal (and, without deciding the point, we assume for the purposes of the case that he has), still he is not entitled to relief against the order of dismissal, unless he shows a valid defense to the action. It would be idle for the circuit court to vacate the order, and then, for want of a defense, to render the same judgment wbicb was restored by the order. In fact, the order dismissing the appeal is equivalent to an affirmance of the judgment of the justice. It was entirely regular to dismiss the appeal on the consent of the only parties wbo defended the action before the justice, or wbo appealed. Clifford was in default for want of an answer or appearance, and bis consent to the order was not essential to its validity or regularity. The reinstating of the cause is the first step towards taking off the default, and permitting a defense to be made; and that step should not be taken unless there is a compliance with the rule which requires a defendant wbo is in default for not answering, to tender a verified answer, showing a defense to the action or some part thereof. An affidavit of merits alone is not sufficient. It has frequently been so held. Seymour v. Supervisors of Chippewa County, 40 Wis., 62; Levy v. Goldberg, id., 308, and cases cited. In the first of these cases it is said -that “ the court was called upon to exercise a discretionary power in favor of the defendant; and it was entitled to know the specific grounds of defense relied upon, before granting the relief prayed.”

No verified answer having been tendered in tbe present case, it was error to vacate tbe order of dismissal.

By the Cowrt. — Order reversed.