Johnson v. Retzlaff

• Decision Date: 05 November 1929
• Citation: 227 N.W. 236,200 Wis. 1
• Parties: JOHNSON v. RETZLAFF.
• Court: Wisconsin Supreme Court

200 Wis. 1

227 N.W. 236

JOHNSON

v.RETZLAFF.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from a judgment and an order of the Circuit Court for Juneau County; Emery W. Crosby, Circuit Judge. Reversed.

This action was commenced by W. S. Johnson against C. G. Retzlaff on the 11th day of November, 1927, to recover the amount due on a promissory note. From a judgment entered in favor of the defendant and against the plaintiff on the 1st day of June, 1928, the plaintiff appeals. The defendant also appeals from an order entered on the 2d day of March, 1929, excusing the default and enlarging the time within which the plaintiff might settle a bill of exceptions.H. E. Kjorstad, of Reedsburg, and McFarlane & Loomis, of Mauston, for plaintiff.

James A. Stone, of Reedsburg, for defendant.

OWEN, J.

Judgment was entered in this case on the 1st day of June, 1928. A notice thereof was served on plaintiff June 20, 1928. Service of a proposed bill of exceptions was required to be made August 19, 1928. Section 270.47, Stats. A transcript of the testimony, however, was not received by the plaintiff's attorneys until September 18th; the same having been ordered on July 16th. Thereafter nothing was done towards securing the settlement of a bill of exceptions until about February 1, 1929, when defendant's counsel was asked to stipulate an extension of time to settle the bill of exceptions. Defendant's counsel declined to so stipulate, and plaintiff's counsel applied to the court for an order permitting the settlement of the bill of exceptions. An order permitting such settlement was entered March 2, 1929. The defendant appeals from that order. As a reversal of that order will make it impossible to consider the merits on the appeal from the judgment, the question presented on the appeal from the order will be first considered.

An examination of the record discloses no reason, justification, or excuse for the delay in procuring a settlement of the bill of exceptions. There is some suggestion that the delay was permitted because of assurances given by defendant's attorney to Mr. Kjorstad, the attorney who had the immediate charge of plaintiff's case, that he would make no objections to the settlement of the bill because the time had expired. It is perfectly clear from the record, however, that Mr. Stone, the defendant's attorney, said that he would not object to such settlement if the bill were settled in time to enable the case to be placed upon the January, 1929, calendar of this court upon appeal. He seems to have insisted at all times, and made it clear to Mr. Kjorstad that he wanted the appeal heard at the January, 1929, term of this court.

[1] There appears to have been no reason whatever for the delay in the settlement of the bill of exceptions except for lethargy and procrastination of Mr. Kjorstad. In granting the order permitting the settlement of the bill of exceptions, the court said: “Now, the court has used his discretion. I have not used my discretion in favor of Mr. Kjorstad. I think Mr. Kjorstad was dilatory. I have used my discretion in favor of Mr. Kjorstad's client. I feel this way, that if a man comes into my court and has a case tried here, he has a right to go to the Supreme Court and we should not punish the client merely because the attorney has not done just what is right in the case. That is the reason the court has used his discretion and gave this man another chance. If the court has done wrong he is always glad to have the supreme court correct him.” It will thus be seen that the trial...