Jenkins v. Esterly

24 Wis. 340

Opinion

Paute, J.

The motion to set aside the judgment for irregularity should have been denied, because it was made too late. It was made more than a year after the judgment was entered. To warrant the setting aside of a judgment for a mere technical irregularity, the party should be prompt in moving so soon as he has actual knowledge of the judgment. He must do it before he takes any subsequent step in the cause. Here he took an appeal from the judgment, which is itself a subsequent step. And it was only after his failure to reverse the judgment on appeal, that he resorted to this motion. Instead of the appeal, therefore, constituting an excuse for the delay, it constituted a waiver of the irregularity. For, unless the judgment was regular, the party ought to have moved, instead of appealing. That such a motion must be promptly made at the first opportunity, see Ætna Life Ins. Co. v. McCormick et al., 20 Wis. 265; Patterson v. Graves, 11 How. Pr. 91; Jones v. U. S. Slate Co., 16 How. Pr. 129.

By the Court. — The order is reversed, with costs.