Barber vs. Rukeyser. thereof. The officer returned, and informed the court that he had notified said attorney, "and was informed by him that he would attend to it." After waiting a sufficient time, the attorney not appearing, the court proceeded with the trial, and a judgment was rendered in favor of Adolph Rukeyser, awarding him the possession of the property or the value thereof in case a delivery could not be had, with damages for its detention, and costs, making an aggregate of $323.68. Notice of the findings, entry of judgment and taxation of costs was duly served upon Barber's attorney, who did not appear at or object to the taxation, nor file exceptions to said findings, nor object to the entry of judgment in the action, or to the judgment until after execution had been issued and returned unsatisfied, and proceedings supplementary commenced. On the 24th of April, 1874, upon an affidavit of said attorney, an order was made on Adolph Rukeyser to show cause why said judgment should not be set aside; but at the May term, 1874, the motion to set aside the judgment was withdrawn, and the present action commenced. On the 16th of September, 1874, after the commencement of this action, Adolph Rukeyser assigned the judgment in question, for value, to his attorney, "with authority to enforce, in such form and manner as he deems fit, the payment thereof, in his name or otherwise, but at his own cost and charge; and said attorney agreed in writing, if the judgment were sustained and collected for the full amount, to account to Adolph Rukeyser for $50 thereof, "as his share and portion, free and clear of any costs or charges" on account of the services of such attorney in that action or in the present action to vacate such judgment. After this assignment had been filed and entered in the office of the clerk of the court, to wit, on the 13th of October, 1874, Adolph Rukeyser executed and delivered to Barber a satisfaction of such judgment, in the usual form. The court further found that "all negotiations with refer Barber vs. Rukeyser. ence to the said cause were had before said stipulations were reduced to writing," and after that time no agreement, verbal or otherwise, was had between the attorneys of the parties with reference to said causes or the disposition that should be made of them. Upon these facts, the court held that the recovery of said judgment in favor of Simon Rukeyser in the first mentioned action would have been a perfect defense in the action of Adolph Rukeyser v. Barber, if such defense had been duly interposed; that the judgment against Barber in the last named action had been obtained without any fraud practiced upon him or any undue advantage taken of him in the trial of the action, and after he had had a full opportunity to defend; that the assignment of such judgment, as above described, was not champertous, and the subsequent satisfaction thereof by Adolph Rukeyser was void as against the assignee; and that equity would not relieve against the judgment. The defendant had judgment accordingly. The plaintiff filed exceptions to the findings of fact and conclusions of law, and appealed from the judgment. The cause was submitted for the appellant on the brief of Courtland P. Larkin (Rogers & Hover, of counsel), in which it was argued, 1. That the doctrine that a party is estopped by the record where he has neglected to make his defense, does not apply to a case like this; that the guilty knowledge with which the judgment was entered, estops the other party from insisting upon it; and that, the whole transaction being fraudulent and against conscience, equity will relieve against the judgment. 22 Wis., 319. 2. That even assuming that there was no intention of fraud, and that no verbal contract or stipulation was ever in fact made for a discontinuance of the second action, still there can be no doubt that Barber and his attorney both understood that such a stipulation had been made; that the payment by Barber of the first judgment, under the advice of his attorney in pur VOL. XXXIX. -38 Barber vs. Rukeyser. suance of the agreement as he understood it, shows that the attorney acted in good faith, and that the judgment was entered through an excusable mistake on his part; and such judgment, having no just claim to support it, will be relieved against in equity. 6 Wis., 439; 7 id., 542, 607; 11 id., 389; 12 id., 81. 3. That there was at least no ground whatever for imputing any negligence or default to Barber himself, through which his defense had been lost, as he had employed an attor ney in regular practice to attend to the case in all its stages, had given it a large degree of personal attention, and had finally relied upon what he understood to be a settlement, by which the claim was paid in full; and the case is therefore plainly within the doctrine of Huebschman v. Baker, 7 Wis., 542. J. V. V. Platto, for respondent, contended, 1. That chancery will relieve against a judgment at law, on the ground of its being contrary to equity, only where it appears that "the defendant in the judgment was ignorant of the fact in question, pending the suit, or it could not have been received as a defense, or he was prevented from availing himself of the defense by fraud or accident or the acts of the opposite party, unmixed with negligence or fault on his part" (Stowell v. Eldred, 26 Wis., 507; Merritt v. Baldwin, 6 id., 439; Wright v. Eaton, 7 id., 595); and that this case was not within the rule. 2. That the case of Rukeyser v. Barber was on the calendar for trial for at least three terms before disposed of, yet it does not appear that the defense of a former recovery and judgment for the same cause was ever set up in that action. 3. That after the judgment in that action was entered, Barber had a remedy at law by moving in the case to open the judgment, obtaining leave to set up the matter now relied on, and having Simon Rukeyser brought in as a defendant, so as to conclude all parties (1 Barb. Ch. Pr., 619: 2 Paige, 26; 1 Clarke Ch., 307, 309; 17 Mass., 394; 14 Wis., 26, 96; 19 id., 597; 21 id., 387; 20 id., 311; 22 id., 311; id., 482; 24 id., Barber vs. Rukeyser. 38); and where there is an adequate remedy at law, a complaint in equity will be dismissed. 5 Wis., 397; 20 id., 639; 26 id., 570. COLE, J. The facts in this case, as proven on the trial and found by the court below, furnish no sufficient ground for granting the relief demanded in the complaint. In Stowell v. Eldred, 26 Wis., 504, this court said that the rule was well settled that a court of chancery would relieve against a judgment at law on the ground of its being contrary to equity, when the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or when he was prevented from availing himself of the defense by fraud or accident, or the acts of the opposite party, unmixed with negligence or fault on his part. The ground for impeaching the judgment in this case is, that it is inequitable and unjust, and was in violation of a verbal stipulation between the attorneys, that, in the event the action of the plaintiff against Simon Rukeyser was decided in favor of the defendant in that action, then the suit in which the judgment sought to be enjoined was obtained, should be discontinued. There is great conflict in the evidence whether any such verbal stipulation was entered into, and the court found that there was not. But, assuming the fact to be otherwise, yet the plaintiff has been guilty of such gross laches as must preclude him from asking relief against the judgment. It appears that the attorney of the plaintiff had notice that the case of Adolph Rukeyser was called for trial, and he was requested by an officer of court to attend at once and look after it. He neglected to appear and set up the defense that by the stipulation, or in consequence of the payment of the judgment in the Simon Rukeyser case, this cause was to be discontinued. Furthermore, notice of the taxation of costs and of the entry of judgment was served upon the attorney of the present plaintiff, and such attorney failed to appear at the The State ex rel. Posey vs. The Supervisors of Crawford County. taxation or object to the entry of judgment. No attempt was made, by motion, to vacate the judgment within the term at which it was rendered, or while it was under the control of the court, upon any ground upon which it is now sought to impeach it. All the facts then existed, within the knowledge of the party, affecting the justness and integrity of the judgment. When a party is in possession of all the facts constituting his defense, has an ample opportunity to avail himself of them, but absolutely neglects to do so while relief in the action itself is within the reach of the court, he must abide the consequences. "Equity always discountenances laches." 1 Story's Eq. Jur., § 64 a. By the Court. The judgment of the county court is affirmed. THE STATE ex rel. POSEY VS. THE SUPERVISORS OF CRAWFORD COUNTY. CONSTRUCTION OF OFFICIAL RECORDS. (1) General rule of construction. Presumption as to records, where authority appears. (2) Effect of resolution that a certain order be entered on the journal. (3) Record as to presence and votes of members, construed. 1. In passing judicially upon official records, where authority appears or is implied by law, they will be construed according to their intent, and it will be assumed that the proceedings were rightly had, in the absence of all suggestion in the record to the contrary. 2. Where a board of supervisors resolved that an order be entered on its journal purporting that the board ordered and determined "as follows:" Held, that the board, ipso facto, ordered and determined what followed. 3. The record of the proceedings of such a board contains this entry, as of a specified date: "Board met pursuant to adjournment. Roll called by clerk. Members all present;" and then states that a certain resolution was offered by a person named, and was passed, "all members voting in the affirmative but one." Held, that this record imports that the vote was by a full board, all the members except one voting for the resolution; and the court cannot intend facts inconsistent with it for the purpose of making it bad. |