Wegwart v. Beneditz

• Decision Date: 17 April 1908
• Citation: Wegwart v. Beneditz, 135 Wis. 422, 115 N.W. 1101 (Wis. 1908)
• Parties: WEGWART v. BENEDITZ.
• Court: Wisconsin Supreme Court

135 Wis. 422

115 N.W. 1101

WEGWART

v.BENEDITZ.

Supreme Court of Wisconsin.

April 17, 1908.

Appeal from Dodge County Court; J. A. Barney, Judge.

Action by Felix Wegwart against August Beneditz. From an order setting aside a judgment on default for plaintiff, and permitting defendant to answer, plaintiff appeals. Affirmed.

Appeal from an order of the circuit court for Dodge county setting aside a judgment and permitting the defendant to answer.

Among other references upon the part of the appellant were the following: Section 2832, St. 1898; Main v. McLaughlin, 78 Wis. 449, 47 N. W. 938;Bank v. Robbins, 67 Wis. 68, 29 N. W. 209, 893;Wheeler & Wilson Mfg. Co. v. Monahan, 63 Wis. 194, 23 N. W. 109;Pfister v. Smith et al., 95 Wis. 51, 69 N. W. 984;Kremer v. Sponholz, 129 Wis. 549, 109 N. W. 527;Dufur v. Home Inv. Co., 122 Wis. 470, 100 N. W. 831.

Among other references upon the part of the respondent were the following: McElroy v. Minn. P. H. Co., 109 Wis. 116, 85 N. W. 119;Rogers v. Fate, 113 Wis. 364, 89 N. W. 186;Smith v. Mil. Elec. R. & L. Co., 119 Wis. 336, 96 N. W. 823;Brown v. Brown, 53 Wis. 29, 9 N. W. 790;Hansen v. Fish, 27 Wis. 535;Schluckebier at al. v. Babcock et al., 104 Wis. 293, 80 N. W. 435;Seymour v. Board of Supervisors, 40 Wis. 62;McLaren v. Kehlor, 22 Wis. 297;Kalckhoff v. Zoehrlaut, 43 Wis. 373;Farley v. C., M. & St. P. R. Co., 89 Wis. 206, 61 N. W. 769;Schillinger v. Town of Verona, 85 Wis. 589, 55 N. W. 1040;Warner v. Michelstetter, 77 Wis. 674, 47 N. W. 181;Mullen et al. v. Reinig, etc., 68 Wis. 408, 32 N. W. 293;Evans v. Rugee, 63 Wis. 31, 23 N. W. 24.John G. Bachhuber, for appellant.

J. E. Malone, for respondent.

TIMLIN, J. (after stating the facts as above).

On March 14, 1907, the plaintiff recovered judgment against the defendant, in an action for goods, wares, and merchandise sold and delivered, money loaned, and labor and services performed, in the sum of $1,802.60 damages and costs, upon a summons and verified complaint on January 17, 1907, duly served upon defendant. Defendant made no appearance before judgment. Immediately after judgment defendant moved to set aside said judgment and permit him to answer upon a proposed verified answer, an affidavit of merits, and upon his affidavit, in substance, that he was of foreign birth, understood and spoke the English language but imperfectly, that he had some dealings with the plaintiff and owed the plaintiff some small amount, that after the service of the summons and complaint upon him, and before default, he sought the plaintiff's attorney, and asked him what the plaintiff claimed, and was informed that plaintiff claimed payment for hay amounting to the sum of $80 or $90. For this reason principally the defendant neglected to appear and defend the case. The affidavit in the foregoing particular was denied by plaintiff's attorney.

Upon this showing the court saw...