Knox v. Clifford

41 Wis. 458

Opinion

Cole, J.

The power of the court to relieve a party from a judgment on the ground of mistake or surprise is expressly limited to one year after notice of the judgment. Section 38, ch. 125, E. S. In the absence of this provision, the power of the court to set aside the judgment for any such reason would expire with the term at-which the judgment was rendered. These points have frequently been decided by this court, as the reported cases will show. In this case the motion to vacate the judgment was granted on the 25th day of July, 1876. The judgment was really entered on the 18th day of May, 1875. It appears that the defendant perfected an appeal from the judgment on the 23d of July, 1875; and he was certainly chargeable with notice of judgment at that time, if not before. Written notice was not necessary, but he was required to act upon any reasonable knowledge of the fact. Butler v. Mitchell, 17 Wis., 53. It might reasonably be presumed that the defendant had actual notice of the judgment about the time it was rendered in May, because the record shows that the finding of the court ordering judgment was served upon his attorney on the 25th of that month. But, however this maybe, he surely cannot claim to have been ignorant of the existence of the judgment when he perfected an appeal from it. And this was more than a year before the judgment was set aside. The power of the court, therefore, to grant the motion was gone, even if the affidavits established a ground for relief under the statute provided the application had been made in time.

Rut it is contended that as notice of tbe motion to vacate tbe judgment was given witbin tbe year, this was sufficient, tliougb tbe motion was not decided until after tbe expiration of tbe year. This position we deem untenable. Tbe power is conferred by statute, and must be exercised by the court according to tbe statute. Tbe court is authorized, in its discretion, upon such terms as may be just, at a^vy time within one year after notice thereof to relieve a party from a judgment through bis mistake, inadvertence, surprise or excusable neglect. Tbe period witbin which tbe discretion is to be exercised is expressly limited to a year after notice of the judgment; and this time cannot be enlarged or extended by merely giving notice of tbe motion to vacate the judgment. Tbe party is required to act, and must bring bis motion to a hearing witbin tbe year, or tbe power to relieve under tbe statute is gone. Tbe provision goes upon tbe very reasonable assumption that a year affords an ample opportunity for a party to obtain relief, if be is diligent. It is obvious that this view disposes of this appeal, and tbe other questions argued by counsel need not be considered.

By the Court. —Tbe order setting aside tbe judgment and granting a new trial is reversed, and tbe cause is remanded.