Hocks v. Sprangers

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Hocks v. Sprangers, 113 Wis. 123, 89 N.W. 113 (Wis. 1902)
• Decision Date: 18 February 1902
• Parties: HOCKS v. SPRANGERS.

113 Wis. 123

89 N.W. 113

HOCKS

v.SPRANGERS.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Syllabus by the Judge.

1. Rule 20, in regard to the time within which a motion for a rehearing must be made and submitted and the manner thereof, relates to a motion for a rehearing strictly so called,--a motion for a reconsideration of matters appearing in the record, covered by or which might or ought to have been covered by the previous hearing, not to a motion to change the judgment here rendered for some other cause, ordinarily made at the bar of the court. A motion of that kind is called “a motion in the nature of a motion for a rehearing,” and it may be made and submitted at any time after judgment while the court is in possession of the record pursuant to section 3071, Rev. St. 1898.

2. The rule, that upon reversing a money judgment in this court, where there is no question as to the right of the losing party here to recover, and the only error found in the record calling for a reversal is that the judgment, for some reason, is too large, the court may name a sum which in its judgment will cure the error and allow the respondent to have judgment for that sum and thereby end the litigation, is not confined to cases where the amount to which the respondent is entitled can be ascertained to a mathematical certainty by computation, but applies to all cases where the circumstances requisite to the application of the rule exist.

3. The circumstances referred to in the foregoing paragraph are: First, a clear right to recover judgment for money damages; second, no error found in the record requiring correction except as to the amount of the recovery appealed from; third, a situation where the amount to which the respondent is entitled is sufficiently clear that the court can name a sum for which he may take judgment which, to a reasonable certainty, will be as low as any that could probably be expected to result from a new trial.

4. Where all the circumstances, as before indicated, clearly appear, there is no reason why the error which made the appeal proper or necessary should not be so cured and the controversy put forever at rest without a new trial. No application, by counsel for the losing party on the appeal, is necessary to set such rule in motion. The court may and ought, in furtherance of justice, to apply the rule on its own motion, granting a new trial and imposing upon parties the vexation and expense of further litigation only when such a course is necessary. Section 3071, Rev. St. 1898.

5. Where a judgment for plaintiff in an action for slander is reversed solely because of improper prejudicial remarks of his counsel to the jury, which may probably have resulted in a larger verdict than otherwise would have been rendered, the rule above stated should be applied, and a new trial prevented if plaintiff will consent thereto.

6. Where, after a cause has been submitted for decision, one of the parties to the litigation dies, and the delay during which death occurred is attributable directly or indirectly to the court, it may render judgment as of the time when both parties were alive, and that rule applies to a cause of action which does not survive as well as one that does.

7. It is requisite to the application of the rule last stated that, at the time of the death of the party, the cause was in such a situation that judgment might have been rendered without any further trial or proceeding in the nature thereof, and that the delay during which death occurred was in some way attributable to the law as administered by the court.

8. Where, upon the reversal of a cause for no other reason than that the verdict of the jury was too large, and according to the practice of the court the losing party should be permitted to take judgment for such sum as, in its judgment, will cure the error, and the court omits to provide therefor, and one of the parties dies while the court yet has possession of the cause, it may, while its jurisdiction continues, cure such omission and permit judgment to be taken as it might have done, as of the time when both parties were living.

On rehearing. Reversed.

For former opinion, see 87 N. W. 1101.

Judgment on the appeal in this case was rendered November 29, 1901, during the August term of that year. The term came to an end December 20, 1901. After the commencement of the present term of court, and on January 15, 1902, motion papers were filed with the clerk in proceedings to obtain a change in the judgment so that, instead of directing the cause to be remanded for a new trial, it would allow the error in the judgment to be cured by remitting therefrom such sum as in the judgment of the court would reduce the amount of plaintiff's recovery to a proper sum. The motion papers were served on the attorney for appellant January 16, 1902. The time set for hearing the motion was January 24, 1902. The court was not in session on that day, hence the hearing of the motion went over to January 28th, the next court day under the rules. That was the last day of the 60-day period for the retention of the record, unless the time was extended by order of the court. On January 21, 1902, a paper was filed with the clerk, signed by the attorneys for the respondent, stating that the appellant's attorney desired to have the hearing of the motion continued from January 28th to January 31st thereafter, and that respondent's attorney consented thereto on condition of the court making an order directing the clerk to retain the record in the cause for the purpose of the motion, and that the court was requested by respondent's counsel to make such an order. On January 28, 1902, the motion was taken up and the paper referred to called to the attention of the court. Thereupon a motion was made and granted to continue the hearing to January 31, 1902, no express order being made directing the clerk to retain the record for the purpose thereof. On said day the motion was brought up for hearing pursuant to the continuance, and the granting thereof was opposed on jurisdictional grounds, among others. The reason urged in favor of the motion on the merits was that, the appellant having died on the 18th day of December, 1901, after the judgment was rendered, unless the relief asked for was granted, respondent would lose all redress for the wrong complained of because the cause of action was one that would not survive. Further, that the rights of the parties were sufficiently settled by the trial already had so that the court might properly have permitted respondent to have judgment notwithstanding the error which prejudicially affected the amount of the verdict.

MARSHALL, J. (after stating the facts).

Counsel for appellant concede that the motion of respondent should be classed as one for a rehearing, but contend that the court has no jurisdiction of the case because the record therein was not retained here by order of the court beyond the 60-day limit, requiring the same to be retained for the purpose of a rehearing; and further, that, conceding that the jurisdiction of the case continued up to the time the motion was submitted, rule 20, as to the time and manner of making the motion, was not complied with, which precludes its being heard under the settled practice of the court. The two propositions can best be considered together.

It is elementary that a court has no right to make any change in a judgment except to correct mere mistakes in that the entry thereof was not in accordance with the judgment pronounced, unless there is a motion for a rehearing, made within the time provided or authorized by section 3071, Rev. St. 1898. Such a motion, by force of the statute,carries jurisdiction of the case in which it is made over from one term to another, permitting the court to revise or vacate or change a judgment in any way which may reasonably be considered as within the scope of a motion for a rehearing, as the term is used in the section. The court has gone a great way in giving a liberal construction to the statute in order to preserve its control over cases as long as the law, in any reasonable view thereof, will permit, to the end that complete justice may be done. It has been held to cover many situations other than a motion for a rehearing strictly so called, which the court has seen fit to call a motion in the nature of a motion for a rehearing. The decisions of the court which apply to the latter class of motions do not in all respects apply to the former, and unless that is understood much want of harmony will appear to exist in the decisions of the court in regard to such matters.

Counsel for appellant cite many cases to our attention to the effect that a motion for a rehearing must be made within thirty days after the rendition of judgment, and in all respects in compliance with rule 20, or it cannot be entertained, failing to discover, as it seems, that they relate only to a motion for a review of a question presented by the record which was or should have been passed upon at the first hearing, a motion for a rehearing strictly so called, not one of the character of that before us, called a motion in the nature of a motion for a rehearing. Krall v. Lull, 46 Wis. 643, 1 N. W. 217, is a good example of the latter class. The application was for an order vacating a judgment for affirmance under the rules. Bonin v. Railway Co., 43 Wis. 210, is another example. There the application was to set aside a dismissal of the appeal under the rule. In such case it was held that the motion partook of the character of a motion for a rehearing, so as to be governed by section 3071, Rev. St. 1898, as regards the effect thereof upon the jurisdiction of the court, but that it was not a motion for a rehearing within the meaning of rule 20, as to the time and manner of making and submitting the same. In the first case cited a judgment was rendered at the August term, 1878, and on November 18th of that year. At the...