Behl v. Schuett

Decision Date16 March 1897
Citation95 Wis. 441,70 N.W. 559
CourtWisconsin Supreme Court


Appeal from circuit court, Columbia county; Robert G. Siebecker, Judge.

Action by William H. Behl against Theodore Schuett and others. Judgment was rendered for defendants in the absence of plaintiff, which was set aside on his application. From so much of the order as imposes terms on plaintiff, he appeals. Reversed.

This was an action on a promissory note for about $250, to which defendants pleaded a counterclaim of about $100. At the December term of the circuit court for 1895, held at Portage City, in Columbia county, Wis., commencing on the 3d day of the month, the cause was on the calendar for trial. It was reached in its order on the 12th. Defendants, with their attorneys and witnesses, were in court ready for trial. Neither plaintiff nor his attorneys were present. Defendants' attorneys waived a jury, proved their counterclaim before the court, and took judgment thereon for $116.25 damages and $201.52 costs. Seasonably thereafter plaintiff's attorneys moved the court to set such judgment aside, and grant a new trial upon the ground of excusable neglect. Such motion was based on affidavits to the effect that plaintiff and his attorneys resided in the city of Milwaukee; that one of such attorneys, C. W. Briggs, attended court on the first day of the term, and had the case set down for trial on the 17th day of December, 1895, with the understanding, as he supposed, that if all the jury cases were disposed of before that time, and the parties were not in court ready for trial, the case would be continued for the term; that on the next day he so notified his associate and the plaintiff; that plaintiff relied thereon, and did not know to the contrary till late in the evening of the 11th of December, 1895, when he was notified by Mr. Briggs that the case would be reached the next day or day after; that upon receiving such notice he started as soon as practicable for Portage, with his witnesses, and arrived there about 2 o'clock p. m. the next day; that judgment was taken shortly before he arrived; that plaintiff intended in good faith to be present with his witnesses and attorneys in time to try the case, and would have been had it not been for the misleading information given to him by his attorney Mr. Briggs. The moving papers contained an affidavit of merits. In opposition to the motion were affidavits and papers to the effect that the case was set down for trial, pursuant to a written stipulation, at the foot of the calendar; that the order of the court recorded on the clerk's journal was to the effect that the cause would be tried on the 17th or sooner, when reached at the foot of the calendar; that the case was called pursuant to such order, and disposed of regularly by proof being taken of defendants' counterclaim, and judgment being entered accordingly by the order of the court; that defendants were in attendance with their witnesses, attorney, and counselor, ready for trial, several days before the case was reached, and that they paid to such attorney for three days' attendance $75, and to such counselor for three days' attendance $75; that they also paid $50 for witness fees, $24.50 for sheriff's fees, $14.75 for clerk's fees, and $2.25 for telephone and postage. The motion to set aside the judgment and for a new...

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13 cases
  • Paschong v. Hollenbeck
    • United States
    • Wisconsin Supreme Court
    • 7 April 1961
    ...trial court. Babcock v. Perry, 1856, 4 Wis. *31; Flanders v. Sherman, 1864, 18 Wis. Page 575 We stated in Bell v. Schuette, 1897, 95 Wis. 441, at page 443, 70 N.W. 559, at page 559: 'Under the statutes providing for the relief of a party from the consequences of mistake, inadvertence, surpr......
  • Masten v. The Indiana Car And Foundry Co.
    • United States
    • Indiana Appellate Court
    • 18 April 1900
    ... ... Honey Lake, etc., Co., 109 Cal. 70, 41 P. 792; ... First Nat. Bank v. Brown (Iowa), ... 77 N.W. 507; Ordway v. Suchard, 31 Iowa ... 481; Behl v. Schuett, ... ...
  • Sly v. Vill. of Kilbourn City
    • United States
    • Wisconsin Supreme Court
    • 6 December 1910
    ...v. Supervisors, 44 Wis. 686;Union Nat. Bank v. Benjamin, 61 Wis. 512, 21 N. W. 523;Butler v. Mitchell, 17 Wis. 54;Behl v. Schuette, 95 Wis. 441, 70 N. W. 559;Morgan v. Bishop, 61 Wis. 407, 21 N. W. 263. Among references cited upon the part of the respondent were the following: Tenney v. Cit......
  • Doheny v. Kohler
    • United States
    • Wisconsin Supreme Court
    • 14 June 1977 . . ."11 Paschong v. Hollenbeck, 13 Wis.2d 415, 423, 108 N.W.2d 668, 672 (1961), also citing and quoting Behl v. Schuette, 95 Wis. 441, 443, 70 N.W. 559 (1897), this court holding: " 'Under the statutes providing for the relief of a party from the consequences of mistake, inadvert......
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