Cole v. Mitchell

• Decision Date: 20 May 1890
• Citation: 77 Wis. 131,45 N.W. 948
• Parties: COLE v. MITCHELL ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 131

45 N.W. 948

COLE

v.MITCHELL ET AL.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Juneau county.

This appeal is from an order setting aside, for want of jurisdiction, a former order permitting plaintiff to commence an action on a judgment dated May 7, 1869. An action on the judgment would have been barred May 7, 1889, by the statute of limitations. The notice was served May 1, 1889, and fixed as the time for hearing May 6, 1889. The notice was not accompanied with the affidavits which were to support the motion. Cir. Ct. Rule 11, § 1, provides that notices of motions for orders shall be served eight days before the time fixed for hearing. Cir. Ct. Rule 11, § 2, provides that such notices shall be accompanied by copies of all records, affidavits, and other papers upon which it is founded.Winsor & Winsor, for appellant.

O. B. Wyman and Smith & Buell, for respondents.

ORTON, J.

The judgment in this case was rendered May 7, 1869. On May 2, 1889, notice was served on the defendants that the plaintiff would make application to the court on May 6, 1889, at 10 o'clock in the forenoon, for leave to bring an action on said judgment. On that day the defendants appeared specially for the purpose of objecting to the jurisdiction and authority of the court to grant said motion. The court, however, sustained said motion, and granted such leave. The statute under which this motion was made is as follows: “No action shall be brought upon a judgment rendered in any court of this state, except a court of a justice of the peace, between the same parties, without leave of the court for a good cause shown, on notice to the adverse party.” Section 2916, Rev. St. On the 9th day of July, 1889, the court, on motion of the defendants, they having appeared specially to make the same, ordered that said order granting leave of May 6, 1889, be vacated and set aside because the court had no power or authority to grant the same. This last order is the subject of this appeal. It will be seen that the order appealed from stands alone upon the want of jurisdiction of the court to grant the former order of May 6, 1889, so that the only question before this court on this appeal is, had the court jurisdiction to make said order?

It is contended by the learned counsel of the respondent that the court had no jurisdiction to grant said order because (1) there was not eight days' notice of the motion, and (2) because no affidavit or other paper on which it was based was served on the defendants, but only the notice itself. It seems that when the notice was served there were only five days remaining before the judgment would be barred by the 20-years statute of limitations, so that this short notice was then a necessity if any previous leave to sue upon it was to be obtained at all. Perhaps there was no excuse for such laches, but such was the fact. We shall take it for granted that this application for leave was a regular motion, and that eight days' notice was required. The defendants appeared, however, not to ask for more time or longer notice, or for any postponement, or that the notice be set aside, or to claim that there was nothing due upon the judgment, and therefore no merit in the application, but “specially for the purpose of objecting to the jurisdiction and authority of said court to grant said motion, and for no other purpose whatever.” It does not appear that it was not convenient for the defendants to meet the motion at that time, or that there was any reason for its not being heard and disposed of at that time, except the purely technical one that the notice was shorter than the statute and rules require. There was therefore no merits in the motion to vacate the order. But that is not the question to be decided, and I speak of it only to show the nature of the proceeding, as it may affect the real question of the jurisdiction of the court to make the order at that time. The order was made on...