Smith v. Dreggert

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: Smith v. Dreggert, 61 Wis. 222, 21 N.W. 46 (Wis. 1884)
• Decision Date: 14 October 1884
• Parties: SMITH v. DREGGERT.

61 Wis. 222

21 N.W. 46

SMITH

v.DREGGERT.

Supreme Court of Wisconsin.

Filed October 14, 1884.

Appeal from circuit court, Shawano county.

This is an action of ejectment brought by the original owner against one in possession claiming under the grantee in a tax deed. The original answer contained a general denial, and an ineffectual attempt to plead several statutes of limitation as held by this court. S. C. 18 N. W. REP. 732. On the case being remanded to the trial court, the defendant, upon affidavits and notice, applied to the trial court for leave to serve and file an amended answer properly setting up the statute of limitations. Upon hearing the motion the trial court made an order reciting, in effect, that the defendant had made an extreme case in favor of granting the leave asked for, and that the same would have been granted if the court had had any power to exercise any discretion in the premises; but, having no such power, the court was compelled to deny the same, which for that reason alone was so ordered. To that order the defendant duly accepted, and from it brings this appeal.Ellis, Greene & Merrill, for respondent.

Moses Hooper, for appellant.

CASSODAY, J.

The allowance or disallowance of an amendment to a pleading setting up a statute of limitations or a plea of usury, rests in the sound discretion of the trial court, under all the circumstances of the case. In accordance with that principle this court has frequently sustained orders of the trial court refusing to grant such amendment. Fogarty v. Horrigan, 28 Wis. 142;Eldred v. Oconto Co. 30 Wis. 206;Meade v. Lawe, 32 Wis. 261;Dehnel v. Komrow, 37 Wis. 336;Plumer v. Clarke, 59 Wis. 646;S. C. 18 N. W. REP. 467. It has also sanctioned the right of the trial court, in the exercise of such discretion, to grant such amendment. Newman v. Kershaw, 10 Wis. 340;Jones v. Walker, 22 Wis. 220;Orton v. Noonan, 25 Wis. 676;Baker v. Supervisors, 39 Wis. 444;Wisconsin Cent. R. Co. v. Lincoln Co. 57 Wis. 138; S. C. 15 N. W. REP. 121, where such discretionary power has in fact been exercised by the trial court in a given case, this court, in the review of such exercise, only determines whether there has been an abuse of such discretion. Dehnel v. Komrow, supra; Capron v. Supervisors, 43 Wis. 617;Plumer v. Clarke, supra; The Phœnix v. Walrath, infra; Willis v. White, infra; Jones v. Evans, 28 Wis. 168.

In the case at bar the trial court expressly refused to exercise such discretion on the asserted assumption that it had no such power. This was error. Where a trial court has, in the exercise of a sound discretion in a given case, power to do or not to do a certain act, a refusal to exercise such discretion, upon the expressed assumption that it has no such power, is an error of law which eliminates from the case the question whether there was any abuse of discretion. Wallis v. White, 58 Wis. 28, 29;S. C. 15 N. W. REP. 767;The Phœnix Ins. Co. v. Walrath, 53 Wis. 669;S. C. 10 N. W. REP. 151;King v. Justices, 14 East, 395; Russell v. Conn. 20 N. Y. 83;Tracey v. Altmyer, 46 N. Y. 598;Tilton v. Beecher, 59 N. Y. 176;Attorney Gen. v. Insurance Co. 88 N. Y. 77;Tolman v. Railway, 92 N. Y. 353. We confine our decision here to the error of law strictly, leaving open to the trial court its rightful exercise of a sound discretion.

The order of the circuit court is...