Wawrzyniakowski v. Hoffmann & Billings Mfg. Co.

• Decision Date: 26 January 1909
• Citation: 137 Wis. 629,119 N.W. 350
• Court: Wisconsin Supreme Court
• Parties: WAWRZYNIAKOWSKI v. HOFFMANN & BILLINGS MFG. CO.

137 Wis. 629

119 N.W. 350

WAWRZYNIAKOWSKI

v.HOFFMANN & BILLINGS MFG. CO.

Supreme Court of Wisconsin.

Jan. 26, 1909.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Action by John Wawrzyniakowski, an infant, by his guardian ad litem, Andrew Wawrzyniakowski, against the Hoffmann & Billings Manufacturing Company. From an order correcting a judgment of dismissal, defendant appealed. Affirmed.

An order was made by the superior court for Milwaukee county, presided over by Hon. J. C. Ludwig, judge of said court, December 6, 1902, pursuant to a motion of defendant's attorneys, based on a stipulation, dismissing the action without costs to either party. No formal judgment was entered. January 8th, thereafter a second order was entered in the action by said superior court, Hon. Orren T. Williams, judge presiding, for a judgment dismissing the case upon the merits without costs to either party, such order being obtained without notice to plaintiff's attorney. The plaintiff was a minor. November 8, 1907, Glicksman & Gold, attorneys, were duly substituted for plaintiff's former attorney and the next day moved the court on notice to set aside the judgment entered as aforesaid, said motion being made in the circuit court before Hon. J. C. Ludwig, circuit judge, which court was the successor to the superior court presided over by said Ludwig and by said Williams when the first order and the second order and judgment were made. The motion was based on due proof that the judgment was rendered pursuant to an arrangement between the defendant's attorneys and the plaintiff's without the matter being brought to the attention of the guardian ad litem for the infant plaintiff and that such guardian had no knowledge of any of the proceedings dismissing the case until about October 22, 1907, when he immediately employed an attorney and caused proceedings to be taken to obtain relief from the unauthorized disposition of the cause. The defendant answered by affidavit that the case was disposed of by an arrangement entered into in good faith by the defendant, acting by its attorney, and the attorney for the plaintiff whom defendant's attorney supposed was duly authorized in the matter, whereby it was agreed that the action should be dismissed and the claimant should be re-employed by the defendant; that after an arrangement to that effect was duly made, for the purpose of having it evidenced in writing plaintiff's attorney addressed defendant's attorney a letter suggesting suitable employment of the plaintiff by the defendant as a method of satisfying his claim and avoiding the uncertainties of a lawsuit, to which defendant's attorney replied by letter that upon a proper release of any claim the plaintiff might have he would be re-employed and his doctor's bill would be paid; that pursuant to such suggestion plaintiff was re-employed, his doctor's bill was paid and the cause was dismissed by stipulation, which did not specify whether the dismissal should be upon the merits or be a mere dismissal.

There were further affidavits to the effect that neither plaintiff nor his guardian ad litem consented to any settlement of the case, or knew of any such settlement, and denying that any liability for a doctor's bill, such as defendant paid, was incurred by plaintiff or his father. Before the motion aforesaid was disposed of a second motion was made for a correction of the judgment of dismissal so as to show that the cause was not dismissed upon the merits, but was dismissed without prejudice to the right to commence over again. Both...