McLaren v. Kehlor , 22 Wis. 297 ( 1867 )

Paine, J.

The ground attempted to be shown for letting the defendant in to answer, was that he did not receive the answer forwarded to him by his attorney for verification, before judgment. If he did receive that answer, it seems obvious that no ground whatever is shown, because there is no pretense of any other mistake, surprise or excusable neglect. "We think from the affidavits that he did receive the answer in time to have returned it and had a trial on the merits before any judgment was taken, if he desired to do so.

The affidavits are evasive. It appears from the officer’s return and affidavit, that the .summons was served by leaving it with the defendant’s wife. The attorney who appeared for Mm, says, in Ms affidavit, that the summons was sent to him “ by some friend of the defendant,” without disclosing who that friend was. It is fairly to be inferred from this that it was sent by the defendant’s wife. The attorney also swears that the defendant “ informed him that he never received the answer” which the attorney had sent to him for verification at New Orleans. But the affidavit of the defendant was also produced, and it is most significant that it contains no denial of having received the ansAver, but on the contrary contains an admission from which we can entertain no doubt that he did receive it. He says he had no notice of the action until late in October, 1865, “ and then only received the information by letter from, a friend addressed to Mm at New Orleans, Louisiana.” It appears elsewhere that the answer was forwarded to Mm in October, 1865. And it seems clear from his careful evasion of any denial that he received it, and of disclosing who the “ friend” was that took such an interest in his suit, that he did receive the letter of his attorney containing that answer.

That being so, if he wantonly disregarded the suit, he shows no case of surprise, mistake or excusable neglect, and nothing therefore which could appeal to the discretion of the court below. And we are therefore compelled to hold that it was an abuse of discretion to let Mm in to answer.

It requires a strong case for us to overrule an order of this kind. The statute upon the subject is broad and liberal, and. should be administered in a liberal spirit for the promotion of justice. But where an application for such an order is so evasive as to compel a conviction that the only ground for granting it, which is suggested at all, is untrue in fact, we think no case is presented for an exercise of the' discretion of the court.

By the Court — The order is reversed, with costs.