Breed v. Ketchum
| Citation | 51 Wis. 164,7 N.W. 550 |
| Parties | BREED v. KETCHUM, IMPLEADED, ETC. |
| Decision Date | 17 December 1880 |
| Court | United States State Supreme Court of Wisconsin |
Appeal from circuit court, Winnebago county.
Appeal by defendant Henry Ketchum from an order denying his motion to vacate the judgment against him in the action and for a new trial. The record returned here does not contain the pleadings or judgment, or any proceedings in the cause before the motion for a new trial was made; but it may be gathered from the briefs of the respective counsel that the action was brought to foreclose a mortgage dated February 25, 1876, executed by the defendants Horace A. Rich, John W. Stillman, and Martin Rich, to the plaintiff, to secure the payment of $5,000 and interest. In addition to the usual aver ments in such actions, the complaint alleges that on or about March 22, 1876, the said mortgagees bargained and sold the said mortgaged premises to the defendant G. M. Wakefield, and as a part of the purchase money thereof said Wakefield promised to pay said mortgage, and the whole thereof; and that afterwards the said Wakefield sold said premises to the defendant Henry Ketchum, who, as parcel of the purchase money, undertook to assume and pay said mortgage.
The appellant demurred to the complaint. The demurrer was held frivolous, and judgment of foreclosure was entered in the action October 29, 1877. The judgment fixes the liability of the defendant Wakefield and the appellant for any deficiency. The mortgaged premises were sold in January, 1879, under the judgment, and the sale was duly confirmed on the eighteenth of the next month. The proceeds of the sale were insufficient to pay the mortgage debt, and the deficiency was large. After the sale, and a few days before confirmation, the appellant moved the court to vacate the judgment against him. The court permitted him to answer, but let the judgment stand. He thereupon answered, admitting that the defendant Wakefield agreed to sell the mortgaged premises to him, but denying that he (the appellant) agreed to assume and pay the mortgage debt. The issue made by this answer being on the calendar for trial at the November term, 1879, of the circuit court, on the eleventh day of February following and during the same term the appellant, by his counsel, moved that the cause be continued to the next term, and the affidavits of himself and counsel were read in support of the motion. The court denied the motion. The cause was called for trial in its regular order on the following day, and counsel for appellant moved for a day continuance under circuit court rule 7. This motion was also denied, and the cause was tried. The plaintiff introduced evidence in support of his complaint, but none was offered on behalf of the appellant. The court found the issue for the plaintiff, and, without rendering any new judgment, awarded execution against the appellant for such deficiency.
At the April term, 1880, of the same court the appellant moved that the judgment against him be vacated and for a new trial. The motion was founded on the records and files in the case, and the affidavits read on the motion for a continuance and on an additional affidavit made by himself. On the hearing of the motion an affidavit of counsel for plaintiff, controverting some of the statements contained in appellant's affidavits, was read in opposition to the motion. This appeal is from the order denying such motion.E. Mariner, for respondent.
Patchin & Weed and G. W. Cate, for appellant.
Error is assigned upon the rulings of the court denying the motions for a continuance of the cause to the next term, for a day continuance under circuit court rule 7, and for a new trial.
Upon an appeal from a judgment this court may review any intermediate order or determination of the court below appearing upon the record, which involves the merits and necessarily affects the judgment, (Rev. St. 799, § 3070,) but on an appeal from an order no authority is conferred to review a prior order in the cause, Flanagan v. Railway Co. 45 Wis. 98, and cases cited. Hence, on this appeal, which is from an order, we cannot review the orders of the circuit court refusing to continue the cause. That can only be done, if at all, on an appeal from the judgment. The only question we can properly determine on this appeal is, did the circuit court err in denying the motion of appellant to vacate the judgment and grant a new trial? The motion was made at a term subsequent to the rendition of the judgment. The circuit court had then lost jurisdiction to grant the motion for any error committed by itself at any former time. It could only grant the motion by virtue of section 2832, Rev. St. 756. If the authority to do so cannot be found in that statute it does not exist, and unless the appellant has brought his case within its provisions his motion was properly denied. Independently of the statute the court had no power to disturb the judgment, however meritorious the grounds of the action might appear.
The statute confers upon the trial court the power, in the exercise of its discretion, and upon just terms, within one year after notice thereof, to relieve a party from a judgment, order, or other proceeding against him, through his mistake, inadvertence, surprise, or excusable neglect. We assume, for the purpose of this appeal, that the motion was made within the prescribed time. There is no claim here of mistake or inadvertence, and the...
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Ean v. Chi., M. & St. P. Ry. Co.
...which entitles a party to relief under this statute must be something more than surprise at the ruling of the court. Breed v. Ketchum, 51 Wis. 164, 7 N. W. 550;Anderson v. Bank, 66 How. Prac. 8; and Root v. Railway Co., 33 Fed. 858. The order of the superior court of Milwaukee county is rev......
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Procknow v. Nw. Iron Co.
...139;Gorsegner v. Burnham, 142 Wis. 486, 125 N. W. 914;Linden L. Co. v. Milwaukee E. R. & L. Co., 107 Wis. 493, 83 N. W. 851;Breed v. Ketchum, 51 Wis. 164, 7 N. W. 550;Wisconsin R. E. Co. v. Milwaukee et al., 151 Wis. 198, 138 N. W. 642. It is clear from the statute referred to and the decis......
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Linden Land Co. v. Milwaukee Elec. Ry. & Lighting Co.
...reviewed. Rev. St. § 3070. But we know of no provision which authorizes a review of one order upon an appeal from another. Breed v. Ketchum, 51 Wis. 164, 7 N. W. 550. That the court had jurisdiction to refuse to allow the plaintiff to arbitrarily discontinue the case, and also jurisdiction ......
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Jones v. Jones
...of the court. Rev. St. Wis. § 2918, subdiv. 7. All reasonable presumptions are in favor of regularity and against error. Breed v. Ketchum, 51 Wis. 164-169, 7 N. W. Rep. 550. The decision will not be interfered with unless there has been a clear abuse of discretion. Smith v. Smith, 51 Wis. 6......