Smith v. Grover

• Decision Date: 25 April 1889
• Citation: 42 N.W. 112,74 Wis. 171
• Parties: SMITH v. GROVER.
• Court: Wisconsin Supreme Court

74 Wis. 171

42 N.W. 112

SMITH

v.GROVER.

Supreme Court of Wisconsin.

April 25, 1889.

Appeal from superior court, Milwaukee county.

This action was commenced July 23, 1887, to recover $500 for the professional services of the plaintiff as an attorney at law for the defendant upon his retainer, and at his request, in certain suits and matters mentioned. The answer, in addition to a general denial, in effect alleged that his attorney in said suits and matters was one E. C. Lewis; that the defendant never employed nor authorized any one to employ the plaintiff, but, on the contrary, expressly refused to do so; that whatever services the plaintiff rendered in said suits and matters were so rendered at the instance and request of said Lewis; that before the commencement of this action the defendant settled with and fully paid the bill of said Lewis, including $150 services rendered by the plaintiff. At the close of the trial, June 15, 1888, the jury returned a verdict in favor of the defendant. At the same term, and on June 30, 1888, the plaintiff, upon his own affidavit and that of K. C. Lewis, and upon the pleadings, records, files, and all proceedings therein, moved the court to set aside the verdict, as being contrary to the law and evidence in the case, and to grant a new trial on the grounds of error in instructions given and refused, and for newly-discovered evidence. July 5, 1888, the court made, entered, and filed an order therein, setting aside the verdict, and granting a new trial, upon paying to the defendant the taxable costs upon such trial. July 16, 1888, such costs were taxed at $50.45, and due notice thereof given to the plaintiff. July 20, 1888, the defendant served notice of such order upon the plaintiff. August 24, 1888, the plaintiff obtained an order for the defendant to show cause why said order should not be so modified as to allow said costs to abide the event of the suit, and for general relief. Upon the hearing of that motion, September 1, 1888, the same was by order entered “Denied,” with $10 costs of motion, and the same was on the same day served on the plaintiff. September 10, 1888, the defendant, upon affidavit, and the records, files, and proceedings, obtained an order for the plaintiff to show cause why judgment should not be entered on the verdict in favor of the defendant. September 12, 1888, the plaintiff, upon an affidavit, the records, etc., obtained an order for the defendant to show cause why the plaintiff's time for paying such taxed costs should not be enlarged and extended to November 1, 1888, and it was therein further ordered that so much of said order to show cause of September 10, 1888, as stayed proceedings upon the part of the plaintiff, be set aside and vacated. Upon the hearing of said motions, September 15, 1888, it was made to appear that after the service of such motion papers, and on September 10, 1888, the plaintiff offered to pay said taxed costs to the defendant's attorney, which he refused to receive, but made no offer to pay the $10. September 29, 1888, it was ordered that the time for the payment of such taxed costs be extended 10 days from said last-mentioned date, and in default thereof judgment to be entered for the defendant; and it was therein further ordered that on the receipt of said costs by the defendant he might as his pleasure place the cause on the calendar for trial at the then present term of the court; and it was further ordered that the motion for judgment on the part of the defendant be, and the same was thereby, overruled. Thereupon the defendant appealed from said order of September 29, 1888, and said order of July 5, 1888, respectively.

Rev. St. Wis. § 2831, provide that the time within which any proceeding in any action may be taken, except as otherwise especially provided, may be enlarged after the time limited by or in pursuance of the statute, or by any order of court, has expired.H. W. Sawyer, for appellant.

Geo. P. Miller, for respondent.

CASSODAY, J., ( after stating the facts.)

The setting aside of a verdict and the granting of a new trial is very much in the discretion of the trial court. This being so, the action of such court in such matters will not, generally, be disturbed, unless it appears affirmatively that there has been an abuse of such discretion. This is so whether such action is based upon newly-discovered evidence, misdirection to the jury, misconduct of the jury, or any supposed injustice. Smith v. Champagne, 72 Wis. 480, 40 N. W. Rep....