Landon v. Burke , 33 Wis. 452 ( 1873 )

Lyon, J.

I. The first question which demands our attention is, whether the judgment was lawfully rendered at a term of the circuit court for La Fayette county ; for if it was not, it is a nullity, and the court should have expunged it from the records whenever its attention was called to the fact.

Ch. 243, Laws of 1862, sec. 1 (Tay. Stats., 1703, § 10), as amended by the Laws of 1872, ch.-13, provides as follows: “ All actions hereafter commenced in any court of this state, for the foreclosure or satisfaction of a mortgage upon real estate, shall be commenced, tried and determined in the county where the mortgaged premises, or some part thereof, are situated ; provided, that the court in which any such action shall be pending, may award a change of venue therein, upon the application of either or any party thereto, for the same causes, and in the same manner, as in other civil actions; and provided, that any motion, demurrer or issue of law, in any such action, maybe heard and determined at any special term of the court in which said action is pending, whether such term be held in said county or not; and provided, further, that judgment by default may be taken in any such action at any such special term of said court.” The last two provisos were added by the amendment of 1872.

It is not denied that the term of the circuit court at which the judgment in this action was rendered, was a special term of the circuit court for Grant county, although.the same was held in another county. See Laws of 1865, ch. 15; id., ch. 133; Laws of 1868, ch. 6. 1

This is, in substance, an action to foreclose a mortgage of some kind upon real estate. It was commenced in the county where the mortgaged premises are situated, and judgment by default was rendered in the action at a special term of the court in which the same was commenced. It seems clear, therefore, that the judgment was lawfully rendered at such term, although the same was not held in the county in which the action was pending.

The learned counsel for the defendants treat the law of 1872, above cited, as an amendment to ch. 170, Laws of 1867, and their argument on this branch of the case is based upon that hypothesis. The foregoing law of 1862, as amended by the law of 1872, is perfectly clear and unambiguous in its terms, and does not require or admit of interpretation or construction, other than what its language plainly imports.

II. The court having jurisdiction to render the judgment, we cannot, .upon this appeal, determine whether it has rendered the proper judgment. To do so would be to make this appeal (which is from an order denying a motion to vacate the judg-' ment and for leave to answer) perform the functions of an appeal from the judgment. Such practice, this court has frequently held to be erroneous. Edwards v. Janesville, 14 Wis., 26; Spafford v. Janesville, 15 id., 474; Flanders v. Sherman, 18 id., 575 ; Ætna, Life Ins. Co. v. McCormick, 20 id., 265; Hartshorn v. The Mil. & St. Paul Ry, Co., 23 id., 692.

In Spafford v. Janesville, the chief justice emploj^s the following language: “ Except in cases of mistake, inadvertence, surprise or excusable neglect, mentioned in the statute, where relief may be granted within one year after notice, we know of no law, statute or common, authorizing the court, upon motion, after the term at which it was entered, to vacate a judgment for error in law or fact committed in rendering it, or occurring before it was pronounced. If such a practice were tolerated, no one knows where it would end. Parties would never be secure iu their rights, and judgments would be of as little account as the course of the wind.” (p. 477.)

In Ætna Life Ins. Co. v. McCormick, supra, Mr. Justice DowNER says: “ It is well established by the rules of the common law, that a court has no power to review or reverse its own judgment of a previous term; that is, as to all matters on which the mind of the court did act, or is presumed from the record to have acted, in the rendition of the judgment, it is precluded from again acting at a subsequent term, and changing its opinions or altering its decisions.” It follows from the above cases, that, although it be conceded that the judgment should have been for a sale of the premises, instead of a strict foreclosure, or, although the judgment may be too severe against the husband, still the circuit court had no power, after the term at which it was rendered, to vacate it for those reasons. The only power or control it then had over the judgment, was to correct mistakes in form or clerical errors, to vacate it, if it is a void judgment, or (the same being valid) to relieve the defendants from it if obtained through their “mistake, inadvertence, or suprise, or excusable neglect.” R. S., ch. 125, sec. 38.

Hence, on this appeal we are not to enquire whether the judgment should have been for a sale of the mortgaged premises, or otherwise, or whether it is too severe against both or either of the defendants in other respects; and anything I might say upon those subjects might justly be characterized as obiter dictum.

Some exception is taken to the form of the affidavit of nonappearance of the defendants, and to the date ,of the jurat thereto, which is clearly a clerical mistake and amendable. It will be sufficiently early to criticise that affidavit when the defendants aver that they did appear to the action within twenty days after personal service of the summons upon them. Inasmuch as they are before tbe court endeavoring to excuse tbeir failure tbus to appear, the form of the affidavit of nonappearance is of but little importance.

III. It is an elementary rule of practice, and one of universal application, that when a party who has been personally served with process, seeks to be relieved from a judgment by default regularly entered against him, he must use reasonable diligence in making the application. In this case the summons was personally served on both the defendants on the 8th day of April, 1872. The defendants knew perfectly well the nature and objects of the action; the summons informed them in plain language that they were required to answer in twenty days after such service; there was nothing complicated or intricate in the case; and they resided within a very few miles of Lancaster, where they could easily have obtained the very best of legal counsel. The only mistake or surprise they allege is, that the judgment could have been and was rendered at the term of the court held in La Eayette county in July. They knew that a term of the circuit court would be held in Grant county in September, at which a judgment might be taken against them in the action (unless taken before that time), yet they made no movement in the case at that term, and they fail entirely to give any reason or excuse for their neglect. It.does not appear that either of them was then sick or blind, or ignorant that a judgment had been obtained against them. Not only did they let that term pass without moving in the action, but they waited quietly nearly four months after the commencement of such term, without offering any excuse for such delay, and then, on the last day of grace save one, extended to them by the judgment of the court, they, for the first time, take steps looking to a motion to be made at the next term, to be held in March, 1873, to vacate the judgment and for leave to answer. When the motion was finally disposed of, nearly a year had elapsed after service of the summons.

It is idle to cite cases to show that these defendants have failed to move in this matter with reasonable diligence. They have been guilty of gross laches, ánd no case can be found, which is worthy of being considered and taken as authority on the subject, which holds that a party in default ought to be relieved and permitted to answer, under such circumstances. To grant the defendants the relief they ask, would be to violate a most just and reasonable rule of practice, at the risk of inflicting a wrong upon the plaintiff.

By the Court. — The order of the circuit courtis affirmed.

The appellant moved for a rehearing.

Lyon, J.

The decision of this appeal was placed upon the ground that the term of court in La Fayette county, at which the judgment herein was rendered, was a special term of the circuit court for Grant county, in which the action was pending, and that the judgment was properly rendered in the former county by virtue of chapter 243, Laws of 1862, as amended by the laws of 1872, chapter 13.

Our attention is now called for the first time to chapter 72, Laws of 1872, which changes the times for holding the general terms of the circuit courts in the fifth judicial circuit, and is silent as to the special terms. Because it is thus silent, it is argued that the act repeals, by necessary implication, those provisions of the Laws of 1865, chapter 15, and the Laws of 1868, chapter 6, which it was held constituted the term in La Fayette county at which the judgment was rendered, a special term of the circuit court for Grant county.

Conceding, for the purposes of this case, that the position is well taken — that the general terms of the circuit court in that circuit are no longer, by virtue of the acts of 1865 and 1868, special terms for each county therein (a point which we do not decide) — we still think that other enactments have made each term of the circuit court in any given judicial circuit, a special term for the purposes of taking proofs and rendering judgment by default in a foreclosure action pending in the circuit court for any county in such circuit.

Section 1 of chapter 170, Laws of 1867, provided as follows: “In all civil actions now pending or which shall hereafter be commenced in any circuit court in any of the judicial circuits in this state, in which the time allowed by law therefor has expired, or shall expire without any issue, either of law or of fact having been or being joined therein, it shall be lawful for the judge of said court, upon the application and motion of the plain tiff in such action, upon such notice to the adverse party as is now required by law in cases where notice of application for judgment is required, and without notice to the adverse party in cases where by law no notice is now required, to sign a judgment or decree at any general or special term of court in his circuit; and the judgment or decree in any action, so signed, stall be filed in the office of the clerk of the court in which such action shall be pending,' and shall have the same effect and be enforced as if the same had been signed during a regular term of said court.” Section 2 of the act excepts Grant county from the operation thereof; but that section was repealed by chapter 42, Laws of 1869. The act of 1867 has been amended by inserting therein a provision that the proofs and testimony taken in the action shall also be filed with the clerk of the court in which the action is pending. Laws of 1872, ch. 38.

The act of 1867, by its terms, is applicable to all civil actions ; and certainly this is a civil action. We are not aware of the existence of any principle of statutory construction, which authorizes us to interpolate an exception, which will exclude from the operation of the act an action to foreclose a mortgage. It is a cardinal rule of interpretation, that general words in a statute must receive a general construction, unless there be something in it to restrain them; and we find no restraining words in the act of 1867. For a full consideration of this rule, and of many of the cases in which it has been applied, see the opinions of the chief justice in Harrington v. Smith, 28 Wis., 48, 60; and Fallass v. Pierce, 30 id., 443, 460. We must hold, therefore, that this action is within the provisions of the law of 1867, as amended, and that the judgment was properly signed at the La Fayette circuit.

The amendment to chapter 243, Laws of 1862, contained in chapter 13, Laws of 1872, seems to have been unnecessary, in that it worked no change in the law; but probably it was enacted to settle any question which had been or might be made, as to the true construction of the act of 1867.

Although not deemed essential to the decision of this motion, it may be further observed that a special term of a court is a term at which only certain specified judicial acts, which can only be done in term, may be done. Such is the significance of the phrase, as it comes to us from the jurisprudence of New York, where it is believed to have originated. The old supreme court of that state held four terms in each year. These were denominated general terms, because at such terms there was no restriction upon the court in the exercise of its whole jurisdiction. But in 1830 the legislature provided for other terms of the court, at which only certain specified matters could be heard and determined; and because thereof, these came to be called special terms. 1 Graham’s Pr. (3d ed.), 34; Laws of New York 1830, p. 208.

If we are correct in holding, that a judgment by default in a foreclosure action pending in the circuit court for Grant county may properly be signed at a general term of the circuit for La Fayette county, it necessarily follows that the latter is a special term of the circuit court lor Grant county.

A reconsideration of the whole case confirms us in the opinion that it was correctly decided in the first instance. The motion for a rehearing must be denied.

By the Court — Motion denied. ;