Brockway v. Newton , 49 Wis. 406 ( 1880 )

Cole, J.

The counsel for defendant insists that the judgment should have been set aside on his motion, for irregularity, because be bad no proper notice of the application for judgment, nor any opportunity to be beard before the referee. Tie claims that, after the close of the, regular term of the circuit court for "Winnebago county, if a party gives notice of an application for a judgment on a day certain, and the court is not open on that day, the motion goes down, and proper practice requires the motion should be again noticed for a day when the circuit judge is present and opens court for the transaction of business. We think this position of counsel is correct and must be approved. Of course, where a motion is noticed to be beard on some day in regular term, it will not go down if the court does not happen to be in session on that day, or for any reason the motion cannot be heard. The motion may be taken up on the next motion day without further notice. Platt v. Robinson, 10 Wis., 129; Allen v. Beckman, 42 Wis., 185. But in that case parties having business in court are chargeable with notice of its proceedings and of its adjournments. But, by chapter 61, even an adjournment from day to day is not necessary to the validity of the proceedings. Attorneys living away from Oshkosh have no means of knowing when the circuit judge will go into court and do business. Indeed, they may know, or be informed- (as the defendant’s attorney in this case states in his affidavit he was), that the circuit judge is without the state on the day the motion is noticed to be heard, and may know that the judge will not be present to hear the motion on that day. Therefore, when the circuit judge, for any cause, cannot be or is not present on the day named to hear the motion, the moving party should give another notice. Unless this is required, the practice under chapter 61 will be productive of much surprise and oppression; for surely attorneys cannot follow the circuit judge all the time to see when he will go into court and do business.

But it is insisted by plaintiff’s counsel that the irregularity in entei’ing the judgment does not affect any substantial right of the defendant, and should therefore be disregarded, under section 2829, R. S. ¥e cannot under the circumstances assume that the defendant was not prejudiced by the irregularity, lie certainly was deprived of the opportunity of being present before the referee, and of a hearing upon the question as to the order in which the mortgaged property should be sold, and whether in parcelé or not. This might 'involve very important rights. But again it is said that, within the doctrine laid down in Bonnell v. Gray, 36 Wis., 574, the judgment cannot be disturbed on account of the irregularity. In Bonnell v. Gray the application to set aside the judgment was made at a subsequent term; here the order to show cause why the judgment should not be set aside was promptly obtained and served. We think the case does not fairly come within the principle decided in Bonnell v. Gray. The cases, in their facts, are quite dissimilar, and we are therefore not disposed to apply that decision here.

It follows, from these views, that the order of the circuit court refusing to set aside the foreclosure judgment must be reversed, and the cause remanded for further proceedings according to law.

By the Court.— So ordered.