Sawicki v. Wulff

172 N.W. 722, 169 Wis. 377, 1919 Wisc. LEXIS 165

• Court: Wisconsin Supreme Court
• Decided: May 27, 1919
• Status: Published

Opinion

Vinje, J.

The judgment was vacated during the term of its rendition and was therefore peculiarly within the control of the trial court. Hansen v. Fish, 27 Wis. 535; Servatius v. Pickel, 30 Wis. 507; Brown v. Brown, 53 Wis. 29, 9 N. W. 790; Boutin v. Catlin, 101 Wis. 545, 77 N. W. 910; Smith v. Milwaukee E. R. & L. Co. 119 Wis. 336, 96 N. W. 823; Frost v. Meyer, 137 Wis. 255, 118 N. W. 811; Weber v. Weber, 153 Wis. 132, 140 N. W. 1052. Its ruling cannot be disturbed except for an abuse of discretion, and that is the only question raised by the appeal. Boutin v. Catlin, 101 Wis. 545, 77 N. W. 910.

It is apparent from the recitals in the order that the court vacated the judgment because it appeared that justice had not been done, and could not be done without a full hearing and trial. Such conclusion was reached from a full consideration of all the affidavits filed and the proposed verified answer. From the affidavit of the defendant it appears, among-other things, that she did not know that any judgment had been entered against her till some time after it was entered and that she took timely steps to have it set aside; that she was informed by her attorney that another action might follow the action of unlawful detainer, but if so she supposed her attorney would appear and protect her interest, but that inadvertently he failed to do so, and that she is advised by her attorney, after a full statement of the facts to him, that she has a valid defense to the action, as set out in the verified answer.

Upon such a showing and under such circumstances we cannot say that the trial court abused its discretion in opening the default. On the contrary, its action was in furtherance of substantial justice.

By the Court. — Order affirmed.