Reynolds v. Taylor, 248
| Citation | 60 Wis.2d 178,208 N.W.2d 305 |
| Decision Date | 29 June 1973 |
| Docket Number | No. 248,248 |
| Parties | Robert L. REYNOLDS, Jr., et al., d/b/a Sieker, Reynolds & Peckham, Respondents, v. Edna E. E. TAYLOR, a/k/a Edna Taylor Giles Norden, Appellant. |
| Court | Wisconsin Supreme Court |
Edna E. E. Taylor, pro se.
Sieker, Reynolds & Peckham, Madison, for respondents; Robert L. Reynolds, Jr. and Wayne D. Landsverk, Madison, of counsel.
The defendant appeals from a default judgment entered against her in this action to recover attorney's fees allegedly due plaintiffs for legal services provided to the defendant pursuant to contract.
Of the several issues raised by the appellant, at least one has merit and requires a reversal. The appellant contends, with appropriate supporting authority, that the trial court could not enter default judgment against her without first having entertained and granted a motion to strike, as untimely, her answer which had been received and placed in the record at the time the default was entered. See Pett v. Clark (1856), 5 Wis. 198; Pritchard v. Huntington (1863), 16 Wis. 569; see also Maxwell v. Jarvis (1861), 14 Wis. 506*, 549.
The cases are old, but their authority is undiminished, especially when they are read in light of the history surrounding the adoption, by court rule, of the present default judgment statute, sec. 270.62, Stats. See 33 Wis.Stats.Annot., Interpretive Commentary, p. 291.
Since a motion to strike the defendant's answer was neither made nor granted by the trial court, it was error to enter the default judgment herein and the judgment must be reversed and the cause remanded.
Upon remand, the court may entertain a motion to strike the answer and if granted, may then entertain a renewed motion for default judgment.
At that point it would be a matter of discretion with the trial court as to whether under all the circumstances, default judgment against the defendant should be entered. Production Credit Assoc. v. Goede (1971), 50 Wis.2d 509, 184 N.W.2d 830; see also Willing v. Porter (1954), 266 Wis. 428, 63 N.W.2d 729.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
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