Union National Bank of Racine v. Benjamin , 61 Wis. 512 ( 1884 )

LyoN, J.

1. The only manner in which effectual service of the answers could have been made was by delivering the-copies thereof personally to one of the attorneys of the plaintiff, or, in case of the absence of all of them from their office, by leaving such copies therein with their clerk, or a person having charge of their office. When the attempted service was made, one of those attorneys was in the office. Hence no valid service could be made without delivering the copies personally to such attorney. This was not done. The copies were not delivered in the office, and never came to the hands of either of the attorneys for the plaintiff. There was, therefore, no effectual service of the answers, and the judgment by default was strictly regular. R. S. sec. 2820.

It follows that the court properly denied the first motion to vacate the judgment, which went, upon the theory that the answers had been properly served. • The order denying that motion must therefore be affirmed.

2. The motion for leave to answer and defend the action was addressed to the discretion of the trial court, conferred upon it by sec. 2832, R. S. That court has determined that the defendants have made ,a case entitling them to relief, and has exercised its discretion in their behalf. That portion of the oz’der is not appealed. .

We think, however, that the terms imposed as a condition for granting relief are unjustifiably severe. Doubtless, it is proper and right that terms should be imposed which, as near as may be, will place the plaintiff in as favorable a position as he would have been in. had relief been denied. But the order of the court places the plaintiff in a better position, for it gives it absolute security for any judgment it may recover in the action. It seems to us that it would be just and equitable that the relief should be granted without disturbing the judgment, which would stand as1 security for the plaintiff’s claim. The plaintiff can then proceed at once to collect the judgment, unless the court, upon proper security being given for the payment thereof, or of any judg-ruent which may hereafter be recovered in the action, shall stay execution thereon. The imposition of such terms is sanctioned by the law, and is quite frequent in practice.

The portion of the second order appealed from must therefore be reversed, and the cause will be remanded, with directions to the county court to permit the defendants to answer and defend the action on the terms above indicated.

Because one .of the orders appealed from is affirmed and the other reversed, we think it equitable to direct that the appellant be allowed no costs in this' court beyond one half the clerk’s fees. No costs are allowed to the respondent.

By the Court.— Ordered accordingly.