Strange's Estate, In re

• Court: Wisconsin Supreme Court
• Writing for the Court: BROWN
• Citation: Strange's Estate, In re, 87 N.W.2d 859, 3 Wis.2d 104 (Wis. 1958)
• Decision Date: 04 February 1958
• Parties: In re ESTATE of John STRANGE, Deceased. John Paul STRANGE, Sr., et al., Respondents, v. Stewart G. HONECK, Attorney General, Appellant.

Page 859

87 N.W.2d 859

3 Wis.2d 104

In re ESTATE of John STRANGE, Deceased John Paul STRANGE, Sr., et al., Respondents, v. Stewart G. HONECK, Attorney General, Appellant.

Supreme Court of Wisconsin.

Feb. 4, 1958.

Stewart G. Honeck, Atty. Gen., E. Weston Wood and John E. Armstrong, Asst. Attys. Gen., for appellant.

Morris Warzinik, Neenah, D. E. McDonald, Oshkosh, of counsel, for respondents.

John W. O'Leary, Neenah, guardian ad litem

BROWN, Justice.

Appellant submits that statutes provide the time during which an erroneous judgment may be corrected by an appeal to the supreme court or by proceedings in the trial court; and if the time so limited expires without any application for relief from the judgment no relief may be had.

An appeal from a judgment of a county court must be taken within 60 days from the entry thereof, sec. 324.04(1), Stats. The time for appeal may be extended in certain circumstances but the order for extension must be made within one year after the act complained of. Sec. 324.05, Stats Sec. 269.46(1), Stats., permits a court within one year after notice thereof to relieve a party from a judgment obtained against him through his mistake, inadvertence, surprise or excusable neglect.

Neither statute gives a court jurisdiction to grant relief in 1957 from a judgment entered in 1928.

Sec. 324.21 provides:

'Records, how amended. Any county court may amend, correct and perfect its record of any matter transacted therein in such manner as may be necessary to make the same conform to the truth.'

Concerning this statute we have said:

'* * * Manifestly this authorizes the correction of purely clerical mistakes. It authorizes the correction of records which do not speak the truth concerning the real action of the court. It does not authorize the court to reverse or set aside its orders or to vacate its judgments. If it permitted the court at its will and pleasure, or upon motion of any party interested, to vacate and set aside, reverse, or modify its orders or judgments, there would be no finality to the procedure of county courts, and would give rise to a chaotic condition anomalous in the law and intolerable in fact.' In re Estate of Cudahy, 1928, 196 Wis. 260, 219 N.W. 203, 205.

Review of a judgment procured by fraud may be had at any time when equity requires it. No fraud is charged here nor would the record support such a contention.

Respondents alleged, without any supporting facts, that the 1928 judgment is erroneous (which is of no importance after time to appeal has gone by) and was pronounced and entered through inadvertence or mistake. No testimony was offered bearing on these charges.

If inadvertence or mistake is of any importance there is no proof of either of them. The trial court did not find that they were present. Its memorandum decision says:

'We come now to the question as to why the judgment was entered as it was in view of the previous ruling by the Court. No testimony was introduced to throw any light on it. This leaves that matter entirely to speculation. * * *'

Its decision does no more than to demonstrate to that court's satisfaction that in its trust provisions the 1928 judgment was founded on...