Heinemann v. Le Clair

• Decision Date: 12 April 1892
• Citation: 82 Wis. 135,51 N.W. 1101
• Parties: HEINEMANN ET AL. v. LE CLAIR.
• Court: Wisconsin Supreme Court

82 Wis. 135

51 N.W. 1101

HEINEMANN ET AL.

v.LE CLAIR.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action by S. Heinemann and another against Charles F. Le Clair. From an order refusing to open a judgment by default, defendant appeals. Reversed.

The other facts fully appear in the following statement by LYON, C. J.:

This appeal is from an order refusing to open a default and allow defendant to answer in the action. The action is to recover the value--alleged to be $288.47--of certain goods sold by plaintiffs to defendant. The complaint also alleges an account stated by the parties, showing that sum due plaintiffs from defendant. The summons and complaint were served on defendant April 30, 1891. About May 12, 1891, the defendant applied to plaintiffs' attorney for a few days' extension of time in which to answer, stating his necessary absence from Hurley, where the parties and attorneys reside, as the reason for such request. Plaintiffs' attorney granted the request verbally, but on condition, as he says, that the defendant should accept short notice of trial; the next term of the circuit court being appointed to commence June 1st thereafter. The defendant says that the extension was granted unconditionally. On May 22d defendant's attorney attempted to serve on plaintiffs' attorney a verified answer containing a general denial, and an averment that the defendant had paid plaintiffs for the goods mentioned in the complaint. Plaintiffs' attorney refused to accept service of the answer unless the defendant's attorney would stipulate for short notice of trial. The latter refused to do so unless the former would stipulate to furnish a bill of particulars of plaintiffs' claim within less than 10 days, which he refused to do. On May 23, 1891, judgment by default was entered for plaintiffs for the amount of their claim. On affidavits showing the facts above stated the defendant moved the court, on June 1, 1891, to open the default, and set aside the judgment, and for leave to file and serve an answer. The court denied the motion. From the order in that behalf, the defendant appeals.Ruggles & Curtis and Smith & Buell, for appellant.

Sleight & Foster, for respondents.

LYON, C. J., ( after stating the facts.)

There is little to be said on this appeal. Although the plaintiffs are not bound by the verbal stipulation of their attorney, yet, on the question of inadvertence or excusable...