Wallace v. Wallace , 13 Wis. 224 ( 1860 )

By the Court,

DIXON, C. J.

The question involved in this case is almost identical with that involved in Howard vs. Boorman, already decided. Tbe action is upon a promissory note. Before tbe time for answering expired, tbe appel-ian^ Up0n affidavit stating that be bad a good and substantial defense as be was advised by counsel, after a full and fair statement of tbe case to tbem, and tbat in order to perfect bis answer it was necessary for bim to obtain information from some persons residing in tbe state of Yermont, wbicb be could not do before tbe time then limited would expire, asked and procured from tbe county judge an order extending tbe time for tbe further period of twenty days. Tbe order, with a copy of tbe affidavit, was properly served. He failed to procure tbe desired information witbin tbe time as thus extended, and just before its expiration again applied to tbe same officer upon a like affidavit, to wbicb was added a statement tbat after due diligence be bad been unable to get tbe requisite information, but tbat with a further extension of twenty days be believed be should be able to procure it. Tbe time was again enlarged, and tbe order and affidavit duly served. At tbe expiration of tbe twenty days as first extended, tbe respondent entered judgment as by default. Tbe copies of tbe orders and affidavits were in both instances served by depositing tbem, postpaid, in tbe post office at Watertown, addressed to tbe respondent’s attorneys at Jefferson. Whether tbe copy of tbe last order and affidavit came to their bands before entry of judgment, does not appear. This however is an immaterial circumstance, since there can be no doubt of tbe validity of tbe service, and it is not questioned by tbem. It is from an order refusing to set aside tbe judgment, tbat this appeal is taken.

It is contended tbat tbe second order was null and void, because tbe county judge was not authorized to extend bis own time, but “tbe time allowed by law.” This position is answered by tbe case of Howard vs. Boorman, supra. Still, we may remark tbat tbe time fixed by tbe county judge was tbat fixed by law, and tbat in enlarging it, be was enlarging tbat “ allowed by law.”

It is furthermore contended tbat tbe second order was void because by section 29 of chapter 140, it is declared tbat “ no order to stay proceedings for a longer period than twenty days shall be granted by a judge out of court, except upon previous notice to tbe adverse party. This objection might be good if orders to stay proceedings and orders to extend the time in which a particular act or proceeding in an action is to take place, were synonymous. But they are not. An order staying proceedings puts an end to all progress in the action, and no step can be lawfully taken during its continuance. But it is not so with an order enlarging the time in which a particular act is to be done or step taken. It may operate incidentally to produce delay, but there are nevertheless many things which the parties may still lawfully do. They can take any step which is not dependent upon or connected with the order. The power to grant orders of the latter character is treated by the statute as distinct and separate from that by which the former are to be made. Time may be enlarged by virtue of section 32, but the power to stay proceedings is elsewhere regulated. The power to relieve parties from the consequences of mistakes and accidents, which are ever occurring in the course of legal proceedings, and to enable them, with proper diligence, fairly to protect their legal rights, must be vested in some proper officers, and it seems to have been the intention of the legislature, in cases like the present, to vest it in those named in section 82. We see no irregularity in the orders enlarging the time, and the motion to set aside the judgment should have been granted.

The order appealed from is reversed, and the cause remanded for further proceedings.