State ex rel. Gaudynski v. Pruss

• Decision Date: 13 February 1940
• Citation: 290 N.W. 289,233 Wis. 600
• Parties: STATE ex rel. GAUDYNSKI v. PRUSS, Judge, et. al.
• Court: Wisconsin Supreme Court

233 Wis. 600

290 N.W. 289

STATE ex rel. GAUDYNSKI

v.PRUSS, Judge, et. al.

Supreme Court of Wisconsin.

Feb. 13, 1940.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Affirmed.

On January 12, 1939, a writ of prohibition issued out of the circuit court for Milwaukee prohibiting the Honorable Thaddeaus J. Pruss, judge of the civil court, and the civil court for Milwaukee county, from taking further proceedings in an action entitled Walter M. Gaudynski versus Louis J. Czerwinski and Bridget Czerwinski, defendants, judgment in which case had been vacated by the civil court and the case set down for trial. From this judgment the Honorable Thaddeus J. Pruss, Louis J. Czerwinski, and Bridget Czerwinski appeal. The material facts will be stated in the opinion.P. F. Leuch, of Milwaukee, for appellants.

E. J. Mueller, of Milwaukee, for respondent.

WICKHEM, Justice.

On May 20, 1936, a judgment was entered in the civil court for Milwaukee county in favor of Walter M. Gaudynski against Bridget Czerwinski and Louis J. Czerwinski upon a judgment note made by the Czerwinskis to Gaudynski. On June 10, 1936, Louis J. Czerwinski moved to vacate the judgment as to himself upon the ground that the debt was discharged in bankruptcy, and an order to that effect was entered on June 26, 1936. On May 6, 1937, defendant Bridget Czerwinski made application to the civil court to vacate the judgment as to her. She supported this motion by an affidavit in which she set forth that her signature to the note was induced by fraud and misrepresentation as to its amount; that the payee did not perform any services for her that could be reasonable worth the amount of the face of the note; that the note arose out of a real estate transaction whereby affiant and her husband purchased a piece of land and Gaudynski aided in closing the deal; that the expenses of the transaction were fully paid by affiant and her husband, and that Gaudynski induced affiant to sign the note for the sum of $1,000 which was the equivalent of five percent on the purchase price of the property; that Gaudynski was not entitled to any such sum but only to the reasonable value of his services; that less than a year has elapsed since the entry of the judgment sought to be vacated; that affiant has a defense of fraud and misrepresentation to the action; that she has stated her case to P. F. Leuch, her attorney, and has been informed that she has a meritorious defense. Attached to the moving papers is an answer setting up that she was not informed of the fact that the note was for the sum of $1,000; that the note was given for services the reasonable worth of which was not in excess of $200. On June 26, 1937, more than a year after the entry of the judgment, the judge of the civil court took under advisement the application to vacate the judgment, and on July 31, 1937, entered an order reopening the judgment, permitting the answer to stand, and adjourning the case to a later date for trial. Thereupon, plaintiff sought the writ of prohibition which was ultimately granted and from which this appeal is taken.

Appellants contend (1) that the circuit court had no power to issue a writ of prohibition directed to the civil court of Milwaukee county to prohibit it from trying a case in which it had exercised, whether rightly or wrongly, its power to vacate a judgment previously entered by it; (2) that the circuit court erred in placing the burden of proof upon defendant to show that the notice of entry of judgment was given less than a year prior to the date upon which the judgment was vacated; (3) that the circuit court erred in concluding that Louis J. Czerwinski was the agent of Bridget Czerwinski and that notice to him was notice to her; (4) that the circuit court erred in concluding that July 28, 1936, was the date of constructive notice to Bridget Czerwinski.

Coming to the first point, the constitution of the state of Wisconsin provides, Article VII, section 8: “The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to *** give them a general control over inferior courts and jurisdictions.”

Sec. 269.46(1), Stats., provides as follows: “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 and may supply an omission in any proceeding.”

Ch. 549, Laws of Wisconsin, 1909, provides: “The said civil court shall have power to open any default judgment rendered by it within one year from the docketing of such judgment, except when an appeal has been taken. ***” Section 21.

[1][2][3][4]We do not understand that any serious question is raised as to the power of the circuit court in a proper case to issue a writ of prohibition as a means of executingits supervisory control over an inferior court. State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N.W. 1107. The requirements and conditions under which a writ of prohibition may be granted have been fully set forth...