Pasternak v. Pasternak
| Decision Date | 06 June 1961 |
| Citation | 109 N.W.2d 511,14 Wis.2d 38 |
| Parties | Michelene PASTERNAK, Plaintiff-Respondent, v. Walter PASTERNAK, Defendant-Respondent, Stanley Pasternak et al., Appellants. |
| Court | Wisconsin Supreme Court |
Motion to set aside a judgment entered upon stipulation.
On September 15, 1958, Michelene Pasternak brought action against Walter, Stanley and Paulina Pasternak seeking possession of the Pasternak farm, damages for withholding of possession, damages for waste and injury to the premises, accounting, and injunction against removal of timber and personal property.
Walter Pasternak is Michelene Pasternak's divorced husband. Stanley is Walter's father. Paulina is Stanley's wife and Walter's stepmother. Michelene alleged that she had title to the farm in fee simple subject to a life estate of Stanley and Paulina in part of it. At the time her complaint was filed, the court ordered defendants to show cause why a temporary injunction should not be issued.
A hearing set for September 22d was adjourned to September 29th, and on the latter date a settlement was apparently reached and a stipulation dictated by the judge in the presence of the parties, the attorney for Michelene, and the attorney for Walter who was referred to in the stipulation as attorney for all three defendants. The stipulation recited that it was made in open court, was attested as correct by the signature of the official reporter, and was filed with the clerk October 3d. At the foot of the stipulation appeared an order 'By the Court' dismissing the action against all defendants upon compliance with the stipulation.
On January 5, 1959, Michelene's attorney presented an affidavit that she had complied with the stipulation, but defendants had not. In accordance with a provision of the stipulation which would apply under those circumstances, judgment was entered that Michelene recover $5,000 and costs from Stanley. The judgment was personally served on Stanley January 14th.
On April 22d, Stanley and Paulina moved that the judgment be set aside, alleging that Attorney Robert Murphy, who represented Walter in the matter, had not represented them; that the stipulation was not made in open court, and that they did not understand that the stipulation imposed any obligation on Stanley.
After hearing the motion on May 18th, the court orally denied it. A written order of denial was entered December 4, 1959. On February 29, 1960, Stanley and Paulina Pasternak appealed, although the record was not filed in this court until January 27, 1961.
The material transactions between the parties as gleaned from apparently undisputed statements in the brief as well as the record may be summarized as follows:
Michelene and Walter were married in 1952. In April, 1956, Stanley and Paulina deeded their farm to Walter and Michelene, reserving a life estate in the portion where the buildings were located. The deed provided that the farm could not be sold by Walter and Michelene while Stanley and Paulina were alive without their consent; that Stanley and Paulina would keep the buildings in repair; that possession of the part of the premises not reserved would pass to Walter and Michelene on July 1, 1958. Walter and Michelene gave a first mortgage to Paulina in the sum of $3,333.34, and a mortgage to Stanley in the sum of $6,666.66. In October, 1956, Michelene obtained a divorce from Walter. The judgment required Walter to pay $2,800 to Michelene and required Michelene to execute a quit claim deed to Walter conveying her interest in the Pasternak farm. In September, 1957, Walter gave a warranty deed of the farm to Michelene subject to all of the provisions in the 1956 deed, and also providing that if within ten years Walter paid Michelene the sum of $3,862.03 plus any payments which she might make on the mortgages in favor of Stanley and Paulina, then Michelene would reconvey the farm to Walter. Michelene testified that at the negotiations in September, 1958, she was making a claim for over $6,000, and her counsel asserts in his brief that the difference between the amount she claimed and the $2,800 due under the judgment was the amount she had paid to Stanley and Paulina on their mortgages on the farm.
The stipulation provided that Stanley would pay Michelene the sum of $5,000 on or before November 1, 1958; that Michelene would execute a satisfaction of her judgment against Walter, would convey all her interest in the farm by warranty deed to Stanley subject only to the mortgage to Paulina which Stanley assumed and agreed to pay, and subject to unpaid real estate taxes which Stanley also assumed and agreed to pay. Michelene agreed to pay a note of Walter's in the amount of $400 owed to a bank, and Stanley agreed to satisfy the mortgage given to him by Walter and Michelene on the farm. The stipulation provided that if the money was not paid by Stanley on or before November 1st, Michelene might, without further notice, enter judgment for $5,000 against Stanley upon depositing her warranty deed and satisfaction of judgment with the clerk of circuit court.
Additional facts will be referred to in the opinion.
Ken Traeger, Gresham, for appellants.
E. B. Martineau, Marinette, for respondent.
Sec. 269.46(2), Stats., provides:
'No agreement, stipulation or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney.'
Appellants claim that the stipulation was neither made in court nor entered in the minutes. On the one hand, the reporter's transcript of the stipulation and the order signed by the court at the foot of the transcript each recites that the stipulation was made in open court. On the other hand, the minute book contains no entry reflecting any proceeding in court in this action on September 29th. There was no other proof from which the presence or absence of the clerk, the sheriff, or their deputies could be inferred.
What apparently occurred was typical of many settlements reached just as a hearing or trial in a matter is about to begin. At the time of the hearing on appellants' motion to set aside the judgment, Judge Murphy dictated the following statement:
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