Loucheine v. Strouse

• Decision Date: 23 June 1880
• Citation: 6 N.W. 360,49 Wis. 623
• Parties: LOUCHEINE v. STROUSE and another
• Court: Wisconsin Supreme Court

6 N.W. 360

49 Wis. 623

LOUCHEINE v. STROUSE and another

Supreme Court of Wisconsin

June 23, 1880

Argued May 28, 1880

APPEAL from the Circuit Court for La Crosse County.

Plaintiff appealed from an order vacating a judgment rendered in his favor and allowing the defendants to answer.

Order reversed with costs.

For the appellant there was a brief by Cameron, Losey & Bunn, and oral argument by Mr. Bunn.

For the respondents there was a brief by Hugh Cameron and William Hull, and oral argument by Mr. Cameron.

OPINION

HARLOW S. ORTON, J.

There are two sufficient grounds for the reversal of the order setting aside the judgment and granting a new trial in this case:

First. The defendants should have tendered an answer setting up a good defense, supported by proper affidavits showing the probability of sustaining it. The judgment was rendered upon frivolous answer, without any leave to answer over, on the 18th day of July, 1878. The defendants moved, on the 3d day of June, 1879, for a vacation of the judgment, and for leave to file an amended answer upon certain affidavits; and such motion was granted without presenting any such amended answer, or any answer. No irregularity in the rendition of the judgment was complained of, and the ground for the motion, as appears from the affidavits, was newly discovered evidence, so that the granting of the motion was in the discretion of the court, and the case falls clearly within the imperative rule adopted and sanctioned in Levy et al. v. Goldberg 40 Wis. 308, and in several other cases in this court.

Secondly. The affidavits show that on the original trial in the state of Minnesota, which resulted in the judgment herein sued upon, one Louis Schlessinger was a witness, and committed perjury in testifying upon a vital and material question in the cause, and that now, upon a new trial in this action, he will testify to the truth and in favor of the defendants upon such question. This is all the newly discovered evidence claimed upon which a new trial was asked, and it hardly amounts to newly discovered evidence, but is more properly newly discovered perjury. The evidence of this witness on another trial, in contradiction of his evidence on the same point on the original trial, would be entirely unreliable and not entitled to any weight without corroboration by some credible evidence also newly discovered, and would not, of itself alone, amount to...