Padek v. Thornton

Decision Date28 February 1958
Citation88 N.W.2d 316,3 Wis.2d 334
PartiesSaul PADEK et al., Respondents. v. Gust THORNTON, Appellant.
CourtWisconsin Supreme Court

George R. Brawley, Milwaukee, for appellant.

Weisfeldt & Berman, Milwaukee, for respondents.


Sec. 269.46, Stats. provides for relief from judgments and orders. Decisions under said section are reviewed briefly in 6 Callaghan's Wisconsin Pleading and Practice, p. 11, sec. 40.11:

'By statute, the court may, 'upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment * * * against him obtained, through his mistake, inadvertence, surprise or excusable neglect * * *.' This provision applies to all classes of judgments, and is liberally construed. Whether or not relief shall be granted under the statute is to a large extent discretionary, and it is rare that the supreme court will overturn exercise of this discretion by the trial court, although, of course, the decision of the trial court will be overturned if its discretion was abused. Not only allowance or disallowance of the application rests in the discretion of the court, but also the terms or conditions to be imposed in case of allowance. Costs are usually required to be paid, and the court may require security for payment of the ultimate judgment or quite heavy terms, if the case warrants; but must not be more severe than circumstances warrant.

'The word 'mistake' used in the statute as indicating one ground of application does not apply to a mistake of law. 'Surprise' means warrantable and honest surprise, not mere pretense or surprise due to negligence, or surprise at a ruling of the court that should have been anticipated. 'Excusable' neglect is neglect through being misled or in spite of reasonable precautions or due to circumstances beyond control of the party. It does not include neglect which consists in a total sleeping on one's rights.'

The Wisconsin cases supporting the statements therein made are cited in the footnotes thereto. Vol. 31 of West's Wisconsin Statutes Annotated, under the appropriate section number, contains a digest of many cases determined under that section. We do not find that the word 'inadvertence' has been defined in any Wisconsin case. The cases indicate that the phrase 'excusable neglect' is taken as embodying the meaning of mistake, inadvertence, and surprise. The inadvertence which will relieve one from a judgment does not mean mere inadvertence in the abstract but it must be excusable and real. It is the burden of one applying for relief from a judgment to show that he comes within the provisions of the statute.

In his affidavit supporting his application to open the judgment and to permit an answer to be filed the only excuse given by the defendant for his failure to answer was that he erroneously believed no answer...

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13 cases
  • Kocinski v. Home Ins. Co.
    • United States
    • Wisconsin Court of Appeals
    • November 29, 1988
    ...would probably change the result." The burden of establishing these elements lies with the party seeking relief. Padek v. Thornton, 3 Wis.2d 334, 338, 88 N.W.2d 316, 318 (1958). Whether to grant relief is a matter within the trial court's discretion and will not be overturned on appeal unle......
  • Hansher v. Kaishian
    • United States
    • Wisconsin Supreme Court
    • July 1, 1977
    ...or excusable neglect were shown. The burden was upon Kaishian to show that one of the requisite conditions existed. Padek v. Thornton, 3 Wis.2d 334, 338, 88 N.W.2d 316 (1958). The fact that Kaishian had made some contact with the attorney for the plaintiff, while perhaps relevant as to excu......
  • Paschong v. Hollenbeck
    • United States
    • Wisconsin Supreme Court
    • April 7, 1961
    ...of its discretion denied relief under this section from a judgment obtained through a mistake of law. It is true in Padek v. Thornton, 1957, 3 Wis.2d 334, 88 N.W.2d 316, 317, this court cited Callaghan's Wisconsin Pleading and Practice, Vol. 6 (3d ed.), p. 11, sec. 40.11, to the effect 'The......
  • Buchen v. Wisconsin Tobacco Co., Inc., s. 431
    • United States
    • Wisconsin Supreme Court
    • June 29, 1973
    ...reverse where there has been a clear abuse of discretion. Ochiltree v. Kaiser (1963), 20 Wis.2d 191, 121 N.W.2d 890; Padek v. Thornton (1958), 3 Wis.2d 334, 88 N.W.2d 316; Gowran v. Lennon (1913), 154 Wis. 566, 143 N.W. 678. This court in Gowran, supra, at page 569, 143 N.W. at page 679, '.......
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