State ex rel. Borgen v. Nitz

Decision Date13 April 1948
Citation252 Wis. 155,31 N.W.2d 193
PartiesSTATE ex rel. BORGEN et al. v. NITZ et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the Circuit Court for Barron County; Carl H. Daley, Judge.

Certiorari proceeding by the State of Wisconsin on the relation of Albert Borgen and others against Ernest Nitz and another, and Warren Pecore, interpleaded defendant, to set aside a determination and order for the laying out of a highway. From an order denying a motion to a vacate the judgment, relators appeal.-[By Editorial Staff.]

Order affirmed.

In certiorari proceedings commenced in the circuit court on the relation of Albert Borgen, et al., against Ernest Nitz and Robert Rogers, each of whom was the town clerk of adjacent towns, the relators alleged in their petition certain facts as grounds for having the court adjudge void and therefore set aside a determination and order, made on July 12, 1945, by commissioners appointed under secs. 80.17-80.20, Stats., for the laying out of a highway under those statutes. In their returns to the writ of certiorari, the town clerks certified as to the facts and action taken by the town boards, the judge of the county court appointing the commissioners, and also their acts and proceeding in making the order of July 12, 1945. After the trial of the issues under the pleadings, the circuit court entered judgment, dated August 2, 1946, affirming the commissioners' order laying out the highway; and notice of entry of this judgment was duly served on August 19, 1946. In September 1946 Wills E. Donley and Wm. B. Collins were substituted as attorneys for the relators, who until then had Messrs. Coe & Cameron as their attorneys therein. On October 7, 1946, pursuant to an order to show cause obtained by the relators, they moved for a review of the judgment of August 2, 1946, and the court in an opinion filed January 3, 1947, held illegal the commissioners' order of July 12, 1945, and that the judgment of August 2, 1946, be set aside. Accordingly, that judgment and the commissioners' order of July 12, 1945, were vacated and set aside by a judgment entered February 5, 1947. However, on March 19, 1947, an inter-pleaded defendant in the certiorari proceeding duly served notice of a motion for an order vacating and setting aside the judgment of February 5, 1947, on the ground that in view of sec. 252.10, Stats., the judgment of August 2, 1946, could have been vacated or set aside within only sixty days after the service of notice of entry thereof on August 19, 1946; and because the judgment of August 2, 1946, was not vacated within that sixty day period, the court decided that the judgment of February 5, 1947 was unauthorized and invalid. Therefore the court on April 2, 1947, entered an order which vacated the judgment of February 5, 1947, and reinstated and continued in full force and effect the judgment of August 2, 1946, and the commissioners' order of July 12, 1945. Thereupon the relators by an order to show cause dated April 24, 1947, moved to have the judgment of August 2, 1946, opened up and vacated and to be relieved therefrom under sec. 269.46(1), Stats., on the grounds that it was obtained through their mistake, inadvertence, surprise or excusable neglect by reason of facts alleged in a petition then filed by the relators. Their motion and the prayer of the petition for such relief was denied by the court in its order entered on June 25, 1947; and from that order relators took this appeal on September 20, 1947. Willis E. Donley, of Menomonie (William B. Collins, of Menomonie, of counsel), for appellants.

Chas. A. Taylor and George Strang, both of Barron, for respondents.

FRITZ, Justice.

This appeal is from solely the order entered June 25, 1947, denying relators' petition to have opened up and vacated, and be relieved from, under sec. 269.46(1), Stats., the judgment of August 2, 1946, on the ground that it was obtained against them through their mistake, inadvertence, surprise or excusable neglect. On this ground, as stated in that statute, ‘The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect * * *.'

Under these provisions the relief authorized thereby could have been granted by the court within such one year period after August 19, 1946, the date on which notice was served on the relators of the entry of the judgment of August 2, 1946, if the court had, in its discretion, determined that the judgment of August 2, 1946, was obtained through relators' ‘mistake, inadvertence, surprise or excusable neglect’. Whether the court erred in its determination to the contrary, and in entering its order of June 25, 1947, denying relators' petition for such relief, constitutes the principal issue on this appeal from that order; and on this appeal therefrom there can be no review of any other order or judgment.

The relators' basis for claiming that they are entitled to have the judgment of August 2, 1946, vacated on their motion for relief therefrom, under sec. 269.46(1), Stats., is that they and their attorneys were not aware, at the time the judgment was entered, that sec. 80.20 had been amended, and because they were not aware thereof, the judgment was...

To continue reading

Request your trial
3 cases
  • Paschong v. Hollenbeck
    • United States
    • Wisconsin Supreme Court
    • 7 April 1961
    ...were pointed out, citing 3 Pomeroy's Eq.Jur. (5th ed.), p. 298, sec. 844, and Annotation 30 L.R.A. 797. Again, in State ex rel. Borgen v. Nitz, 1947, 252 Wis. 155, 31 N.W. 193, we affirmed the trial court, which in the exercise of its discretion denied relief under this section from a judgm......
  • Schlimgen v. Cohen
    • United States
    • Wisconsin Court of Appeals
    • 26 March 1987
    ...whether or not new case law qualifies as a ground to vacate a judgment, the Fellenz decision was not 'new.' In State ex rel. Borgen v. Nitz, 252 Wis. 155, 31 N.W.2d 193 (1948), the court concluded that statutory amendments discovered after a 15 month delay did not qualify as mistake, inadve......
  • Newman v. Newman
    • United States
    • Wisconsin Supreme Court
    • 30 June 1950
    ...be deemed to warrant a reversal of the court's decisions. Consequently the order under review must be affirmed. State ex rel. Borgen v. Nitz, 252 Wis. 155, 161, 31 N.W.2d 193. Order ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT