Charolais Breeding Ranches, Ltd. v. Wiegel

Decision Date04 December 1979
Docket NumberNo. 77-158,77-158
Citation285 N.W.2d 720,92 Wis.2d 498
PartiesCHAROLAIS BREEDING RANCHES, LTD., Plaintiff-Appellant, v. Joseph G. WIEGEL, Defendant-Respondent.
CourtWisconsin Supreme Court

Judgment was entered dismissing the complaint of Charolais Breeding Ranches, Ltd., plaintiff-appellant, against Joseph G. Wiegel, defendant-respondent, and granting respondent judgment on his counterclaims in the amount of $45,007. Trial was to the court. The appellant moved to reopen or vacate the judgment on the grounds that it was entered as a result of mistake, inadvertence or excusable neglect. This appeal is from the order denying the motion to reopen or vacate the judgment.

Ellis R. Herbon, Milwaukee, for plaintiff-appellant.

Gilbert F. Barnard, Darlington, for defendant-respondent.

HANSEN, Justice.

We deem it necessary to set forth the facts in considerable detail because they are somewhat unusual and the issues relate to whether the trial court abused its discretion in denying the motion of Charolais Breeding Ranches, Ltd. (hereinafter CBR), to reopen or vacate the judgment.

On April 30, 1974, CBR commenced an action against Wiegel seeking a declaratory judgment adjudging that CBR was entitled to the immediate possession of some 276 head of Charolais cattle owned by CBR and in the possession of Wiegel under a "CATTLE CARE CONTRACT," and damages for the wrongful detention of the cattle. CBR also sought an order requiring Wiegel to immediately return all of such cattle to CBR. Counsel for CBR was Donald S. Eisenberg & Associates.

The order to show cause was returnable on May 3, 1974, and required Wiegel to show cause as to why he should not be required to immediately deliver possession of all of said cattle to CBR.

A hearing was held on the order to show cause on May 3, 1974, and CBR appeared by the Eisenberg firm and Wiegel appeared in person and by his lawyer, Gilbert F. Barnard. The trial court ordered Wiegel to deliver all of the cattle to CBR and, to protect Wiegel's alleged lien rights, required CBR to furnish and file a surety company bond under which the surety would guarantee and bind itself to pay to Wiegel any and all costs and damages which he might recover from CBR on certain counterclaims to be interposed by him, not exceeding, however, the sum of $44,000.

Pursuant to this order, a bond in the amount of $44,000 was executed by CBR as principal, and by Sentry Indemnity Company as surety on May 7, 1974, and was filed on May 8, 1974. This bond was signed on behalf of CBR by William A. Zietz, as president, and Fred Bleier, as secretary.

On May 20, 1974, Wiegel served his answer and four counterclaims, and filed them on May 23, 1974.

On June 10, 1974, CBR moved to strike all four of Wiegel's counterclaims. The motion was heard on July 1, 1974, and the trial court entered an order denying the motion but permitting Wiegel to serve and file amended counterclaims within 20 days.

On July 16, 1974, Wiegel served four amended counterclaims, and filed them on July 19, 1974.

On August 4, 1974, CBR served a reply to the counterclaims on Wiegel's lawyer, but it appears this reply was never filed.

On October 21, 1974, the United States District Court for the Western District of Wisconsin approved a petition for reorganization of CBR under Chapter X of the Bankruptcy Act, and that court entered an order staying further proceedings in this action pending in the circuit court for Lafayette county, Wisconsin. On the same day James M. Siehr was appointed by the District Court as trustee.

On May 15, 1975, all plans for the reorganization of CBR under Chapter X were disapproved, CBR was adjudicated a bankrupt, and Siehr was appointed trustee in bankruptcy for CBR.

On July 23, 1975, the bankruptcy judge issued an order directing Siehr as trustee in bankruptcy to show cause on July 31, 1975, why an order should not be entered vacating the order staying further proceedings in the action pending before the circuit court for Lafayette county, and directing that the trustee proceed with the prosecution of CBR's cause of action in that court, or in the alternative, why the trustee should not be required to abandon CBR's suit against Wiegel. On July 31, 1975, the bankruptcy judge entered an order vacating the previous order staying proceedings in this action. This order of July 31, 1975, is silent as to whether the trustee should proceed with the prosecution of CBR's action in the Lafayette county circuit court, and is silent as to whether the trustee should be required to abandon CBR's cause of action against Wiegel.

On September 16, 1975, Wiegel served a notice of trial and certificate of readiness on CBR, on Donald S. Eisenberg & Associates as counsel for CBR, and on James M. Siehr, trustee in bankruptcy. This notice and certificate were filed on September 25, 1975.

On December 16, 1975, the trial judge wrote and mailed a letter to Donald S. Eisenberg & Associates as counsel for CBR, Gilbert F. Barnard as lawyer for Wiegel, and James M. Siehr, advising them that a pretrial conference would be held in this action at the courthouse in Darlington on January 9, 1976, at 3 p. m., and that the trial of the action would commence before a jury at Darlington on February 2, 1976, at 10 a. m.

On January 8, 1976, (one day before the pretrial) the trial judge received a telephone call from Siehr in which he stated that he did not intend to attend the pretrial conference, and that as trustee he did not feel that he had any further interest in the case.

On January 9, 1976, at 3 p. m. the trial judge was present in the circuit court room at the courthouse in Darlington, and at that time Wiegel appeared by his lawyer, Gilbert F. Barnard, and no one appeared on behalf of CBR. After waiting for 20 or 30 minutes the judge instructed Barnard to telephone John Louderman, an associate of the Donald S. Eisenberg & Associates law firm to ascertain whether someone from that firm was coming to the pretrial conference. Barnard reported to the judge that he was in contact with Louderman by telephone and that no one from his firm planned to attend the pretrial conference. The judge then talked to Louderman on the telephone and he gave the judge no valid reason for failing to attend the pretrial, and further stated he would not withdraw the reply which he had served to the counterclaims. The judge advised him that the case would be tried as scheduled. Louderman advised the judge that he consented to the trial of the case on February 2, 1976, as originally scheduled, and that on behalf of his client he waived trial by jury and would consent to the trial of all issues by the court. Thereafter and on January 12, 1976, the trial judge wrote and mailed a letter to Donald S. Eisenberg & Associates, Gilbert F. Barnard and James M. Siehr advising all of them as follows:

"As agreed by telephone between all counsel and the Court on January 9, 1976, trial by jury is waived in the above action and trial will commence before the Court at Darlington on Monday, February 2, 1976, at 9:30 o'clock a. m. as case number one."

On January 19 or 20, 1976, lawyer Carl F. Schetter of Milwaukee, Wisconsin, telephoned the trial judge and stated that he was representing one Fred Bleier, who had signed the surety bond as secretary of CBR, and who had also personally signed an indemnification agreement with Sentry Indemnity Company wherein he agreed to indemnify such surety company for any loss it might sustain because of its execution of the bond. Schetter advised the judge that he was going to California from January 22nd through February 6th and requested a continuance. The trial judge told Schetter that his client as an individual was not a party to the action and refused his request for a continuance. On January 22, 1976, the trial judge received a letter from Schetter dated January 21, 1976, in which he stated that the trustee in bankruptcy did not feel that the suit was worth pursuing to judgment, that he (Schetter) had notified lawyer Eisenberg that under no circumstances should he allow default judgment to be entered on Wiegel's counterclaims, and he again requested a continuance. On January 26, 1976, the trial judge wrote to Schetter, Barnard and Eisenberg, and stated that Bleier was not a party to the action nor had he sought intervention. The trial judge further stated that he had no opinion as to whether Bleier could compel intervention if he sought such relief, and that it was up to Schetter to seek intervention if he felt he was entitled to such relief and then seek a continuance if he felt that he had grounds therefor. The trial judge further advised all three recipients of the letter that the trial would proceed as scheduled on February 2, 1976, without a jury, unless prior thereto a continuance was granted on proper motion of some party to the action.

On January 27, 1976, the trial judge received from the Eisenberg firm a copy of a request for substitution of judge in this action which was dated January 26, 1976. On the same day the clerk of the circuit court for Grant county informed the trial judge that she had received in the mail on the same day from the same law firm a document appearing to be the original of such request for substitution of judge. The trial judge instructed the Grant county clerk of court to mail the purported original request back to Eisenberg so that he could, if he saw fit, file it with the proper clerk. On the same day the trial judge wrote and mailed a letter to Donald S. Eisenberg & Associates and to Gilbert F. Barnard advising them that a copy of a request for substitution had been received, that he had instructed the Grant county clerk to return the original to Eisenberg so that he could file it with the proper clerk, and enclosing to each of them a copy of the trial court's order denying such request for substitution. The trial court's order, filed on January...

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