Dugenske v. Dugenske

Decision Date04 October 1977
Docket NumberNo. 75-639,75-639
Citation80 Wis.2d 64,257 N.W.2d 865
PartiesFrances DUGENSKE, Respondent, v. Theodore DUGENSKE, Appellant.
CourtWisconsin Supreme Court

Syllabus by the Court

This is an appeal from an order dismissing a motion to vacate a judgment and allow the filing of an answer. The trial court found that, under the facts presented, a lawyer's failure to answer a complaint, due to his misplacement of the files while relocating his office, did not constitute such excusable neglect as to require relief from the resulting default judgment.

William R. Slate, Markesan, for appellant.

Michael P. Lehner and Lisheron Law Offices, Princeton, for respondent.

CONNOR T. HANSEN, Justice.

The plaintiff-respondent, Frances Dugenske (hereinafter plaintiff), was granted a default judgment of divorce from the appellant-respondent, Theodore Dugenske (hereinafter defendant), in Illinois, on October 18, 1974. The judgment directed the defendant to quitclaim to the plaintiff his interest in his homestead, located in Green Lake county, Wisconsin.

On July 29, 1975, the plaintiff commenced an action in the Green Lake county court to enforce the divorce judgment. A summons and complaint were personally served upon the defendant, who turned them over to his lawyer, Charles K. Wildermuth, for the filing of an answer. Mr. Wildermuth, who was in the process of relocating his law offices, misplaced the complaint and his related files. As a result, a timely answer was not filed.

On September 23, 1975, a hearing was held on the plaintiff's motion for a default judgment. The defendant, by other counsel, moved orally for an extension of time in which to answer. The court denied the defendant's motion and granted a default judgment in favor of the plaintiff, allowing the defendant twenty days in which to bring a motion to vacate the judgment.

The defendant brought such a motion, seeking relief on the ground that his failure to answer was the result of excusable neglect. The motion, which was heard on October 7, 1975, was supported by an affidavit of Lawyer Wildermuth stating that he had misplaced the papers while relocating his office, and was further supported by a proposed answer alleging as an affirmative defense that the Illinois court did not have jurisdiction to dispose of Wisconsin real estate. The motion was denied by the court's order of October 22, 1975, and the defendant appeals.

Two issues are presented:

1. Is a lawyer's failure to answer a complaint such excusable neglect as to relieve his client from a resulting default judgment, where the failure is the result of the lawyer's misplacement of the client's files while relocating his law offices?

2. If the lawyer's conduct was excusable neglect, does an Illinois divorce court's alleged lack of jurisdiction to dispose of Wisconsin real estate constitute a meritorious defense to enforcement of the divorce judgment in Wisconsin?

Section 269.46(1), Stats.1973, provided: 1

"269.46 Relief from judgments, orders and stipulations; review of judgments and orders. (1) The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding. In addition to the required affidavits, all motions to vacate a judgment entered upon default or cognovit and to obtain a trial upon the merits shall be accompanied by a proposed verified answer disclosing a defense."

This statute requires the party moving to vacate a default judgment to show two things: (1) The party seeking relief must show that the judgment was entered through mistake, inadvertence, surprise or excusable neglect; and (2) that the party has a meritorious defense to the action. Wagner v. Springaire Corp., 50 Wis.2d 212, 220, 184 N.W.2d 88 (1971).

The determination of whether to vacate a default judgment is within the sound discretion of the trial court, and the trial court's decision will not be disturbed unless there has been a clear abuse of discretion. Buchen v. Wisconsin Tobacco Co., 59 Wis.2d 461, 465, 208 N.W.2d 373; Wagner v. Springaire Corp., supra.

In the exercise of its discretion, the trial court must be cognizant of three general considerations: (1) Sec. 269.46(1), Stats.1973, is remedial in nature and should be liberally construed, Paschong v. Hollenbeck, 13 Wis.2d 415, 421, 108 N.W.2d 668 (1961); (2) the law prefers, whenever reasonably possible, to afford litigants a day in court and a trial on the issues, Quinn Distributors, Inc. v. Miller, 43 Wis.2d 291, 296, 168 N.W.2d 552 (1969); and (3) as a corollary to this preference, default judgments are regarded with particular disfavor, Lorscheter v. Lorscheter, 52 Wis.2d 804, 810, 191 N.W.2d 200 (1971).

In the instant action, the defendant seeks to establish that his lawyer's failure to answer constituted excusable neglect. This court has said that "excusable neglect" is:

" . . . 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.' "

Wagner v. Springaire Corp., supra, 50 Wis.2d 217, 184 N.W.2d 91, quoting 15A Words and Phrases (Perm.Ed.), p. 225, and Giese v. Giese, 43 Wis.2d 456, 461, 168 N.W.2d 832 (1969).

In determining whether the "reasonably prudent person" standard has been met, the trial court should consider whether the defaulting party has acted promptly to remedy his situation, whether the default judgment imposes excessive damages, and, generally, whether vacation of the judgment is necessary to prevent a miscarriage of justice. Cruis Along Boats, Inc. v. Stand. S.P. Mfg. Co., 22 Wis.2d 403, 409-11, 126 N.W.2d 85 (1964). This court has often held that neglect due to the pressure of a lawyer's work, without some "additional persuasive explanation," is not "excusable neglect." Wagner v. Springaire Corp., supra, 50 Wis.2d 217, 218, 184 N.W.2d 88. See also: Giese v. Giese, supra. The question remains, however, whether "mislaying the files" in the process of moving a law office is a sufficient "additional persuasive explanation." The trial court held that such an assertion did not constitute sufficient grounds to find excusable neglect. We do not believe the trial court abused its discretion in making such a determination and certainly we cannot hold that such a determination constituted a clear abuse of discretion by the trial court.

We find no Wisconsin case that has considered the exact question here presented. Courts in other jurisdictions, however, have considered the precise question. 2 In Western Union Tel. Co. v. Skinner, 60 Tex.Civ.App. 477, 480, 128 S.W. 715, 717 (1910), a Texas appellate court concluded:

" . . . The fact that appellant's attorney in New York was moving his office and confusion reigned on that account, and that a new filing system for case papers and a new variety of envelopes as well as a new indexing system were adopted could form no sufficient reason for neglect to file an answer. . . . "

On the other hand, in Lawson v. Adams et al., 89 App.Div. 303, 85 N.Y.S. 863 (1903), a lawyer's failure to appear in court was held excused by the fact that he had moved his offices the day before, throwing his papers into confusion. Noting that there appeared to be a genuine controversy, the court reversed an order refusing to set aside the resulting default judgment. The court said:

" . . . There seems to be no good reason to believe that the...

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