February 5, 1958 —
February 28, 1958.
APPEAL from an order of the circuit court for Milwaukee county: MYRON L. GORDON, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by George R. Brawley of Milwaukee.
For the respondents there were briefs by Weisfeldt Berman of Milwaukee, and oral argument by Harry J. Weisfeldt and Gene A. Berman.
Action to foreclose the rights of the purchaser under a land contract. On November 17, 1956, the plaintiffs and the defendant entered into a contract wherein the defendant agreed to pay the sum of $24,750 for certain real estate located in the city of Milwaukee in instalments as provided therein. The plaintiffs agreed to convey the premises to the defendant upon payment of said amount. The defendant agreed to pay the sum of $420 per month, commencing on the 15th day of December, 1956, during the first year of the contract. The record discloses that there are two brick buildings containing nine rental units on the premises described in the contract.
On January 21, 1957, this action was commenced and in the complaint it was alleged that the defendant had failed to make the monthly payments due on December 15, 1956, and on January 15, 1957. On the 29th day of January, 1957, the plaintiff secured an order to show cause returnable on February 1, 1957, wherein the defendant was ordered to show cause why a receiver should not be appointed to collect the rents from the premises. The order was served on the defendant and he appeared with an attorney on the return date. At the defendant's request the matter was adjourned to February 15, 1957. The trial court ordered the appointment of a receiver but the receiver did not qualify.
On the 28th day of February, 1957, the plaintiffs and their attorney and the defendant with a different attorney entered into a written stipulation which provided that in lieu of a court-appointed receiver Saul Padek, one of the plaintiffs, would collect the rents and apply them to payments on the first mortgage on the premises held by the Security Savings Loan Association. It was further stipulated that the defendant might occupy one unit in the premises without obligation to pay rent and could continue such occupancy until the period of redemption had expired. The stipulation further provided that the period of redemption would terminate on the 1st day of July, 1957. An order to that effect based on the stipulation was signed by the court on February 28, 1957.
On the 6th day of April, 1957, the defendant was served with notice that the plaintiffs would apply to the court on April 12, 1957, for a judgment in accordance with the complaint. The defendant appeared in person and by attorney at that time and requested an adjournment to the 19th day of April, 1957, which was granted. On the adjourned date the defendant appeared in person and by another attorney and asked for a further adjournment to permit his new attorney to investigate the facts of the case and to prepare and interpose an answer. There had been negotiations between the defendant and the plaintiffs in which different attorneys appeared for the defendant and the counsel who appeared with the defendant on April 19th was the eighth attorney who had represented him. The trial court denied the request for a further adjournment, and findings of fact and a judgment were entered on May 7, 1957. It was determined therein that the sum of $25,410 was due on the contract together with costs and attorneys' fees, and it was adjudged that the defendant pay the sums found to be due on or before the 1st day of July, 1957, or that the defendant and all persons claiming under him be foreclosed of any right, title, interest, or equity of redemption in and to the premises described in the land contract. A copy of the judgment was served upon the defendant and his attorney.
On June 10, 1957, the court, on application of the defendant, issued an order to show cause returnable on the 18th day of June, wherein the plaintiffs were ordered to show cause why the judgment should not be vacated and set aside and the action placed on the calendar for trial on the merits. At that time the defendant submitted a proposed answer in which he alleged that the plaintiffs had collected the rents from the tenants occupying the premises and that the rentals collected were more than sufficient to satisfy the monthly payments due under the contract.
At the conclusion of the hearing on the order to show cause the trial court orally dismissed the order to show cause and a formal written order to that effect was signed on the 21st day of June, 1957. The defendant appealed from that order.
Sec. 269.46, Stats., provides for relief from judgments and orders. Decisions under said section are reviewed briefly in 6 Callaghan's Wisconsin Pleading and Practice (3d ed.), p. 11, sec. 40.11:
"By statute, the court may, `upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment . . . against him obtained, through his mistake, inadvertence, surprise, or excusable neglect. . . .' This provision applies to all classes of judgments, and is liberally construed. Whether or not relief shall be granted under the statute is to a large extent discretionary, and it is rare that the supreme court will overturn exercise of this discretion by the trial court, although, of course, the decision of the trial court will be overturned if its discretion was abused. Not only allowance or disallowance of the application rests in the discretion of the court, but also the terms or conditions to be imposed in case of allowance. Costs are usually required to be paid, and the court may require security for payment of the ultimate judgment or quite heavy terms, if the case warrants; but must not be more severe than circumstances warrant.
"The word `mistake' used in the statute as indicating one ground of application does not apply to a mistake of law. `Surprise' means warrantable and honest surprise, not mere pretense or surprise due to negligence, or surprise at a ruling of the court that should have been anticipated. `Excusable' neglect is neglect through being misled or in spite of reasonable precautions or due to circumstances beyond control of the party. It does not include neglect which consists in a total sleeping on one's rights."
The Wisconsin cases supporting the statements therein made are cited in the footnotes thereto. Vol. 31 of West's Wis. Stats. Anno., Title 25, p. 604, under the appropriate section number, contains a digest of many cases determined under that section. We do not find that the word "inadvertence" has been defined in any Wisconsin case. The cases indicate that the phrase "excusable neglect" is taken as embodying the meaning of mistake, inadvertence, and surprise. The inadvertence which will relieve one from a judgment does not mean mere inadvertence in the abstract but it must be excusable and real. It is the burden of one applying for relief from a judgment to show that he comes within the provisions of the statute.
In his affidavit supporting his application to open the judgment and to permit an answer to be filed the only excuse given by the defendant for his failure to answer was that he erroneously believed no answer would be necessary. The record shows that the summons and complaint were served upon the defendant personally. When he appeared by attorney on the application for the appointment of a receiver his attorney indicated that he wished to withdraw from the matter and the court, according to its memorandum decision, then explained to the defendant what his rights were, advised him to secure other counsel, and granted him an adjournment of two weeks for that purpose. On the adjourned date of the hearing the defendant appeared with other counsel and the court appointed a receiver. Before the receiver qualified the defendant and his attorney entered into the stipulation above referred to. The trial court was careful to make known to the defendant that an independent receiver should be appointed. However, in the face of and contrary to the advice of the trial court the defendant and his various counsel entered into stipulations at variance with that advice. In fact, the stipulation of February 28, 1957, which was embodied in the court order, seemed to contemplate the entry of a default judgment in that the stipulation provided for the period of redemption and that the defendant could occupy one unit of the premises rent free up until that time.
The record indicates that the defendant was advised of the facts and he cannot now claim mistake as a basis for the relief sought. No inadvertence is shown as the defendant retained counsel of his own choosing and apparently followed his attorney's advice. Nor can he claim here any surprise, because he was notified of every step taken in the action and he appeared in person and by counsel. Nor is there any excusable neglect shown. So far as the record shows, the defendant paid nothing down at the time he entered into the land contract. He never paid anything thereon but received some free rent for a matter of some months. There is no claim of any newly discovered evidence or that the facts set out in the proposed answer were not known to the defendant at all times after the service of the summons and complaint upon him.
The relief sought under the statute is addressed to the discretion of the trial court and upon appeal from its order this court will only reverse where there has been a clear abuse of discretion. Under the circumstances as revealed by the record before us we can find no such abuse of discretion in this case.
By the Court. — Order affirmed.