Summary
In Williams v. Miles, 268 Wis. 632, 68 N.W.2d 451 (1955), it was held not an abuse of discretion for the trial court to refuse to reopen a judgment where the defendant alleged in her affidavits that she had called upon the plaintiff's attorney and "objected to the action," and that she had believed this was sufficient.
Summary of this case from Hansher v. KaishianOpinion
January 11, 1955 —
February 8, 1955.
APPEAL from an order of the circuit court for Jackson county: BRUCE F. BEILFUSS, Circuit Judge. Affirmed.
For the appellants there was a brief by Jedney, Lund Sherman of Black River Falls, and oral argument by Ralph S. Lund and Berton D. Sherman.
For the respondent there was a brief by Louis I. Drecktrah of Black River Falls, and Fugina, Kostner, Quinn Ward of Arcadia, and oral argument by Mr. Drecktrah and Mr. La Vern G. Kostner.
On September 3, 1952, defendants, George E. Miles and Emma Miles, his wife, gave to plaintiff, Paul S. Williams, an option to purchase for $700 a lot in the city of Black River Falls. On December 13, 1952, plaintiff gave to defendants notice of his intention to exercise the option. Defendants refused to comply. On October 13, 1953, this action was brought to compel specific performance of the option agreement. Notice of lis pendens was duly filed. Defendants defaulted. On November 16, 1953, judgment for specific performance was entered, and on November 21, 1953, a certified copy of the judgment was recorded in the office of the register of deeds. The judgment vests title to the lot in plaintiff and directs payment of the purchase price theretofore deposited by plaintiff with the clerk to defendants.
On December 11, 1953, plaintiff conveyed an adjoining lot to Reverend and Mrs. O.W. Brand, and on December 31, 1953, he conveyed the lot in question to the Brands. It is not contended that the Brands had actual knowledge of any circumstances which might prejudicially affect their interest in the lots.
On January 20, 1954, defendants caused to be served upon plaintiff notice of motion to open the judgment and for leave to answer. The motion was denied by order entered on April 24, 1954. Defendants appeal.
The briefs of the parties are devoted almost entirely to a discussion of the question whether the Brands are bona fide purchasers and how the determination of that issue should affect the result of this appeal. Defendants contend that they are not and that consequently the trial court erred in not opening the judgment.
If defendants' contention constituted a direct attack upon the title of the Brands we would clearly have before us the question whether they should be treated as bona fide purchasers. However, we are not here presented with that issue. We are concerned with but one question: Did the trial court abuse its discretion in denying defendants' motion? Its ruling may not be disturbed except for such abuse. Sec. 269.46, Stats.; Mortgage Discount Co. v. Praefke, 213 Wis. 97, 250 N.W. 846. In the short memorandum opinion filed by the trial judge there is particular reference to the fact that the interests of the Brands, who are not yet parties to this action, are involved. We do not construe the opinion as stating that as the only factor considered by the court in its conclusion. There are other circumstances which undoubtedly influenced the trial court in arriving at its conclusion. The lot was intended to serve as a part of a site for an automobile service station. For sufficient area the adjoining lot was needed and was bought only after plaintiff had obtained the judgment and was thus assured that the two lots were available for the site. Neither plaintiff nor Brands had use for either lot without the other. The Brands were not made parties to this action nor were they given an opportunity to assert and protect their rights under their deed.
The motion of defendants is supported only by the affidavits of Emma Miles. She states that after service of the summons and complaint upon her she called upon plaintiff's attorney and "objected to the action;" that she did not think it was necessary to employ an attorney and assumed that the objection which she had made to plaintiff's attorney was sufficient; that her husband became sick while the action was pending and that the time and energy spent by her in his care "upset her mentally;" that she did not know of the effect of her failure to appear, and that when she learned of the judgment she immediately consulted an attorney to ascertain what her rights were. She does not charge that any misrepresentation was made to her by the attorney for the plaintiff when she called upon him. Nor does she charge that anything which he said induced her to act or omit to act.
We would not be warranted in saying that the trial court abused its discretion when no more than the foregoing was offered by defendants as their excuse for their default. Certainly, that must be said when it is considered also that the rights and interests of persons who are strangers to the record are involved. 31 Am. Jur., Judgments, p. 320, sec. 796; 49 C.J.S., Judgments, p. 558, sec. 306.
By the Court. — Order affirmed.