Ean v. Chi., M. & St. P. Ry. Co.

• Decision Date: 30 September 1898
• Court: Wisconsin Supreme Court
• Parties: EAN v. CHICAGO, M. & ST. P. RY. CO.

101 Wis. 166

76 N.W. 329

EAN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Sept. 30, 1898.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Alice Ean against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for the wrongful act of the defendant which caused the death of plaintiff's intestate. Upon the trial the defendant objected to the admission of any evidence under the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action. The objection was sustained, and thereafter a judgment was entered dismissing the complaint, and for costs. The plaintiff appealed to the court, and upon a proper hearing the judgment of the superior court was affirmed January 12, 1897. 95 Wis. 69, 69 N. W. 997. The cause was duly remanded, and on April 10, 1897, and within one year from the date of the entry of the judgment in the superior court, that court entered an order setting aside and vacating its order dismissing the plaintiff's complaint, and the judgment entered in pursuance thereof, and permitted the plaintiff to amend her complaint, and required the defendant to answer within 20 days. This order was made without terms, and purports to have been made under and by virtue of the provisions of Rev. St. 1878, § 2832. From the order so entered, this appeal is taken. Reversed.C. H. Van Alstine, for appellant.

Rogers & Mann, for respondent.

BARDEEN, J.

The provisions of section 2832, Rev. St. 1878, under which it is sought to justify the action of the court below, are substantially to the effect that the court or judge may, in his discretion, and upon such terms as may be just, at any time within one year after notice thereof relieve a party from a judgment against him “through his mistake, inadvertence, surprise or excusable neglect.” The appellant contests the validity of this order, upon the ground that the superior court had no power to vacate the judgment. The importance of this contention is manifest. It involves a consideration of the force and legal effect that is to be given to judgments of this court. This precise question has never been before this court, although a kindred question, under another statute, was determined in State v. Circuit Court of Ozaukee Co., 71 Wis. 595, 38 N. W. 192, the effect of which we will consider hereafter. It was long ago determined that section 2832 did not apply to judgments of this court. Pringle v. Dunn, 39 Wis. 435. In Stevens v. Supervisors, 43 Wis. 36, the judgment of the court below was affirmed reluctantly, upon grounds that seemed technical. This court, upon rehearing, was asked to modify its judgment so as to direct a new trial, as the only means of preventing obvious and gross injustice. This application was denied on the ground that there was neither statute to authorize, nor practice to sanction, a discretion for a new trial upon a judgment of affirmance. The practice followed in this case, of asking this court to amend or modify its judgment, seems to recognize the theory contended for by the appellant,--that the judgment of this court is final upon the rights of the parties. In Smith v. Armstrong, 25 Wis. 517, the judgment had been appealed to this court and affirmed. After the case had been remitted, the court below was asked to modify the judgment in certain particulars. From an order denying this request, an appeal was taken. In disposing of the question, Mr. Justice Paine says: “In respect to the application to amend the judgment, it not being a mere clerical mistake, but a matter of substance, it is a sufficient answer to say that this very judgment, having been rendered, and affirmed on appeal to this court, has become final between the parties; and, even though it were conceded that there were errors in it, they are no longer subject to correction in the circuit court under the guise of amendment.” The case of Whitney v. Traynor, 76 Wis. 628, 45 N. W. 530, is to the effect that when a judgment, or a part thereof, is reversed, and the case is remitted for further proceedings, the trial court has no authority to grant a new trial as to any of the issues. This seems to be in accord with the uniform tenor of decisions in courts of last resort. Chouteau v. Allen, 74 Mo. 56;Young v. Thrasher, 123 Mo. 308, 27 S. W. 326;West v. Brashear, 14 Pet. 51;Chaires v. U. S., 3 How. 611;Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. 611. The case of Patten Paper Co. v. Green Bay & M. Canal Co., 93 Wis. 283, 66 N. W. 601, and 67 N. W. 432, affirms this principle, and says, in vigorous language: “We are clearly of the opinion that a judgment entered, as this was, in substantial accordance with the mandate of this court, is, in legal effect, the judgment of this court. It is just as effectually res adjudicata as in a case where the judgment is affirmed. Reed v. Jones, 8 Wis. 421.” Wells v. Express Co., 55 Wis. 23, 11 N. W. 537, and 12 N. W. 441, and Mowry v. Bank, 66 Wis. 539, 29 N. W. 559, are to the effect that a judgment of affirmance is res adjudicata, and cannot be disturbed by the court below.

The legal effect of a judgment of this court having been considered in so many cases, and its finality, as to any power of the court below to disturb it, having been sanctioned by such a long course of judicial decisions, it would seem not to be an open question. But we are referred to the case of State v. Circuit Court of Ozaukee Co., 71 Wis. 595, 38 N. W. 192, as an authority sanctioning the action of the court below in this case. It must be...