Cruis Along Boats, Inc. v. Standard Steel Products Mfg. Co.
| Decision Date | 04 February 1964 |
| Citation | 22 Wis.2d 403,126 N.W.2d 85 |
| Parties | CRUIS ALONG BOATS, INC., a foreign corporation, Plaintiff-Respondent, v. STANDARD STEEL PRODUCTS MFG. CO., a Wis. corporation, Defendant-Respondent, Kenosha Auto Transport Corp., a Wis. corporation, Cross-Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Kivett & Kasdorf, Milwaukee, Nonald J. Lewis, Milwaukee, of counsel, for appellant.
Robertson, Hoebreckx & Davis, Milwaukee, Walter S. Davis, Milwaukee, of counsel, for respondents.
The issue on this appeal is whether the trial court abused its discretion in refusing to vacate the default judgment rendered upon the cross complaint of defendant Standard Steel Products against impleaded defendant Kenosha Auto Transport.
The contention of appellant Kenosha Auto Transport is that it has established a clear case of 'excusable neglect' within the meaning of sec. 269.46(1), Stats. 1 which required the trial court to vacate the default judgment. It advances these reasons in support of this contention: (1) The attorney in charge of the case was prevented by the press of trial work from getting the answer and counterclaim served within the 20-day-allotted-period; (2) the attorney had the right to assume that the principal action between plaintiff Cruis Along and defendant Standard Steel Products would not be reached for trial for some time so that it was of no vital importance to anyone concerned that the answer to the cross complaint be served expeditiously; (3) the answer to the cross complaint and counterclaim was in the hands of opposing counsel only eight days late, and proceedings to vacate the default judgment were instituted only eleven days after it was entered; and (4) without a vacation of the default judgment there will be a miscarriage of justice inasmuch as Standard Steel Products has been awarded $4,000 in damages when its actual damages are but $395.
This court has repeatedly held that the press of other trials and business is not such 'excusable neglect' as to make it an abuse of discretion not to grant relief under such statutes as secs. 269.46(1) and 269.45(2), Stats. Millis v. Raye (1962), 16 Wis.2d 79, 113 N.W.2d 820; Jolitz v. Graff (1960), 12 Wis.2d 52, 106 N.W.2d 340; Millar v. Madison (1943), 242 Wis. 617, 9 N.W.2d 90. As the trial judge rightly pointed out in his first memorandum decision:
'It is very significant that while counsel for the impleaded defendant states he was engaged in another trial and that these other occupations formed a basis for finding excusable neglect, the record is absolutely barren of any statement by him that he was (a) Unable to phone counsel for the defendant, Standard Steel Products Manufacturing Company, (b) Unable to file and Serve a notice of appearance, (c) Move for an extension of time to file an answer because of the press of other trials, (d) Unable to stop in court, which is the same building where he claims the trials were proceeding, and notify the court of this fact, (e) Unable to have anyone of his associates do any of these things.'
Appellant cites McArthur v. Slauson (1884), 60 Wis.2d 293, 19 N.W. 45, as negating the above observation of the trial judge that no showing was made why one of the other associates in the law firm of the lawyer, who was in charge of this matter for Kenosha Auto Transport, could not have been asked to take one of the enumerated steps to avoid a default. The McArthur Case held that even though a lawyer may have competent partners a client who has entrusted a case to a particular lawyer may be entitled to have him try the case. Here, however, we are not concerned with a trial, but with the routine matter of serving and filing a timely notice of appearance or securing an extension of time within which to answer.
We conclude that, whether or not the appellant's attorney had the right to assume that the principal action would not be reached for trial in the near future, is wholly immaterial on the issue as to the trial court's abuse of discretion. Under the law, counsel knew that appellant had twenty days from March 27, 1962, in which to answer the cross complaint. It was not for counsel to determine for himself whether any harm would result if he was late in drafting, serving and filing his client's answer to the cross complaint.
The most potent argument advanced by appellant is that the attempted service of answer was made only eight days late, and that only eleven days elapsed from the date of entry of the default judgment until an application was made to vacate the judgment. Prompt action by a defaulting party to remedy the situation caused by his neglect is a material factor to be considered when determining whether such neglect is 'excusable.' Millis v. Raye, supra, 16 Wis.2d at page 84, 113 N.W.2d at page 823; Valentine v. Patrick Warren Construction Co. (1953), 263 Wis. 143, 170, 56 N.W.2d 860; Johnson v. Eldred (1861) 13 Wis. *482,
It is for this reason that we would have granted appellant's motion to vacate the judgment if we were sitting as a trial court in this case. 'Sec. 269.46(1), however, confers wide discretion on the trial court. Therefore, we are not prepared to lay down a rule that, in every case of neglect followed by a prompt application for relief, it is an abuse of discretion not to grant the relief.
If highly excessive damages were awarded to Standard Steel Products by the default judgment, this is a proper element to be considered in exercising the discretion authorized by sec. 269.46(1), Stats. Preventing a miscarriage of justice is one of the elements to be considered. It is undisputed that appellant's driver reported that one of the two boats being transported from Cruis Along's factory in Maryland to Texas was damaged as a result of the side of the boat being scraped against a bridge. At the time of taking testimony, the president of Standard Steel Products testified that there was a loss in market value as a result of the damage in transit of $4,000, which was approximately between 20 and 25 per cent of its market value in Texas. He further testified:
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