Hauer v. Christon

• Decision Date: 06 June 1969
• Docket Number: No. 254,254
• Parties: James HAUER and Norman Wachtl, copartners, d/b/a Northview, Plaintiff-Respondents, v. James T. CHRISTON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 81

168 N.W.2d 81

43 Wis.2d 147

James HAUER and Norman Wachtl, copartners, d/b/a Northview Plaintiff-Respondents, v. James T. CHRISTON, Defendant-Appellant.

No. 254.

Supreme Court of Wisconsin.

June 6, 1969.

The defendant James T. Christon is an attorney and has appealed from a default judgment entered against him for his failure to be prepared to try his case on the day set for trial. The action was commenced on February 9, 1968, and is to recover for rent due on a written lease the defendant made with the previous owner. The defendant denied liability because of fraudulent representations which induced him to enter into the lease and alleged other defenses and seeks damages for various breaches of the lease. Because Milwaukee county has a court rule that a Milwaukee judge will not hear a case in which a Milwaukee lawyer is involved as a party, Dodge County Judge Clarence Traeger was assigned to hear the case in Milwaukee.

On June 12, 1968, in a telephone conference Judge Traeger set September 12 and 13, 1968, as the trial dates. On September 3 the defendant requested by letter an adjournment of the trial date because his witnesses were out of the state and unavailable. The trial judge stated he would allow an adjournment if the plaintiff agreed. The defendant was unable to get the plaintiff to agree and was unable to reach Judge Traeger on September 6th by phone to get an adjournment for cause. He then applied to the calendar judge of the county court of Milwaukee county for an adjournment under rule 4 of that court. A hearing was held September 9th and the calendar judge granted an adjournment for cause. On September 10th Judge Traeger by phone informed the plaintiff and the defendant that the trial would be held as originally scheduled and if the defendant was not prepared for trial a default judgment would be granted against him.

On September 12th Judge Traeger came to Milwaukee to hear the case. The defendant informed him he was not prepared and the calendar judge had adjourned the case for trial. After some criticism of the Milwaukee-county calendar-judge system and of other matters unrelated to the issue, and after the denial of defendant's motion for an adjournment, Judge Traeger vacated the calendar judge's order of adjournment on the ground the calendar judge lacked jurisdiction, struck the defendant's answer, dismissed the counterclaim, and invited and granted the plaintiff's motion for a default judgment. It is from this judgment, the appeal is taken.

James T. Christon, Wauwatosa, pro se, appellant.

James A. Hemmer, Milwaukee, for respondent.

HALLOWS, Chief Justice.

We overlook the threshold question of whether an assigned judge sitting outside of his territorial jurisdiction can disregard the rules of the court in which he is sitting. This case was not assigned or removed to the court presided over by Judge Traeger. If it were, it would follow the local rules of the venue. Here, Judge Traeger was assigned to the Milwaukee county court to hear the case. We think a judge on such an assignment is bound by the local rules and should, when in Rome, do as the Romans do. Uniformity in the administration of justice can only be obtained when only one set of rules prevail in a locality.

The facts present a more difficult question concerning the power of a trial judge to strike an answer and dismiss a counterclaim of a party for not being prepared for trial. Here, the defendant was also a lawyer, apparently trying his own case, but we view the case not as an exercise of power for unpreparedness of Christon as an attorney but unpreparedness of Christon as a party. This is the more favorable view to judge the action of a trial judge because the power to strike a client's answer for the acts of his attorney is more limited than to strike for the acts of the party.

The plaintiff argues the court has the power to strike a pleading under s. 885.11, Stats., but this section is not applicable. This section deals with the unlawful refusal or the neglect of a party to appear or to testify and provides the court may strike the pleading and give judgment against the person disobeying the order. However, here the defendant did not unlawfully refuse to testify but merely stated he was not prepared to try the case because of the unavailability of witnesses. The purpose of this section in respect to the refusal to testify is related to the suppression of evidence and thus a presumption may be raised that the evidence is detrimental to the cause of the party. This is akin to the presumption which arises upon the failure of a party to call an available witness within his power to call to substantiate his case.

The plaintiff also argues the court has the inherent power to strike the defendant's pleading. We think this is true and we so held in Lathum v. Casey & King Corp. (1964), 23 Wis.2d 311, 127 N.W.2d 225. But such inherent power is not exercised on the basis of contempt but upon the necessity of the court to maintain the orderly administration of justice and the dispatch of its business. However, there are serious constitutional limitations upon the exercise of this inherent power both to dismiss a defendant's pleading and to dismiss a plaintiff's complaint, although in the latter case a distinction has been made that a plaintiff cannot ask the court to hear his case and also refuse to obey a court order related to the action. In the case of the defendant courts have reasoned his pleading could not be stricken because he does not voluntarily seek the aid of the court. We think the distinction is not valid. If a person has a right to bring an action it would seem the constitutional due process provisions would be violated by dismissal just as much as in the case of a defendant who is ordered to answer and has a right to defend himself.

From an examination of the record it is clear the dismissal of the defendant's answer and counterclaim was in the nature of a punishment for not being ready for trial on the trial date. In a sense it was based on a contempt of court, although the trial court did not make a finding of contempt. The defendant asked for his day in court, but the trial judge did not allow his case to go to trial even though the defendant was unprepared. If the trial had been had the defendant could have cross-examined the plaintiffs' witnesses, testified himself and put in such other evidence as was available to him, but instead the trial court denied him such right.

Such ruling raises the serious question of whether it constituted a violation of due process under the 14th Amendment of the United States Constitution. In the early case of Hovey v. Elliot (1897), 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, the United States Supreme Court took the view the trial court had no power to strike an answer and grant a default judgment for contempt. The contempt consisted of the failure of the defendant to deposit certain bonds, the subject of the suit, in court. The court said, 'The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right...