Ray v. Northrup

• Citation: 55 Wis. 396,13 N.W. 239
• Parties: RAY AND OTHERS v. NORTHRUP.
• Decision Date: 09 September 1882
• Court: United States State Supreme Court of Wisconsin

55 Wis. 396

13 N.W. 239

RAY AND OTHERS

v.NORTHRUP.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from circuit court, Milwaukee county.

Finches, Lynde & Miller, for respondents.

T. W. Shepard and W. W. D. Turner, for appellant.

TAYLOR, J.

This is an appeal from an order refusing to set aside a judgment of foreclosure and permit the appellant to file an amended answer. The action was to foreclose a mortgage given by the appellant to his father, E. L. Northrup, and by said E. L. Northrup assigned to the respondents. The action was commenced on the sixth of December, 1879. The appellant appeared in the action by his attorney and served his answer December 26, 1879. The cause was continued from time to time until the January term, 1881, when, upon due notice of trial, the case was brought to a hearing, and on the thirteenth of said month the judge before whom the case was tried made his findings therein, and the same were filed in the clerk's office on February 8, 1881, upon which day judgment of foreclosure was duly entered, and the costs were taxed and inserted therein on the fifteenth of said month. Notice of the entry of judgment was served on the appellant on February 21, 1881. On January 25, 1882, the appellant filed a proposed amended answer in the action, and upon his own affidavit, the affidavit of his attorneys, W. W. D. Turner, J. Dobbs, and E. L. Northrup, moved the court to set aside the judgment and permit him to file his proposed amended answer and defend the action. The motion was denied, and from the order denying the motion he appeals to this court.

From the statement of the facts of the case it is evident that the appellant was guilty of laches in not putting in his defense in the original answer, and also in not moving promptly for relief after judgment was entered against him. His only reason for delaying the matter is that he was informed by his father, the original mortgagee, that he would endeavor to arrange the matter with the respondents so that the foreclosure suit would not be pressed against him. This might have been some excuse for not defending the action, but it was no excuse for not moving promptly to set it aside after judgment was entered against him. It is also evident from the affidavits that the facts stated in the proposed amended answer were as well known to the appellant when he filed his original answer as they were when he proposed to file the amended one. That his original answer did not set out any facts constituting a defense to the action is now admitted, and it is...