Battles v. Doll, 113 Wis. 357.

would be refining the rule to a shadow to say that the mere circumstance of a village having or not having a stream or gully within its limits is a sufficient basis for a classification. We cannot believe that this was the legislative intent. A more reasonable construction, and one not out of harmony with constitutional requirements, is that the exemption applies to such cities and villages as are required by law to maintain their own bridges. Under such a construction the law can be sustained within the rule of the cases herein before mentioned. If the village of Prairie du Sac comes within the class last mentioned, the tax in question was unlawfully imposed, and it makes no difference whether it had bridges to maintain or not. Its exemption from the tax simply depends upon the fact of whether, if it had bridges, it would, under the law, be required to maintain them. The statutes do not, in express terms, say that a village shall build and maintain its bridges, but a reading of ch. 40 in connection with sec. 1339 leaves little doubt where the obligation lies. By sec. 893, subd. 11, power is given the village board to lay out, open, change, widen, or extend roads and streets, and to build and repair any bridges thereon. By sec. 895 it is given the power of condemnation. Sec. 905 authorizes the village authorities to pave or improve streets. Sec. 911 imposes a poll tax, and sec. 912 requires such tax to be expended on the streets and sidewalks. Sec. 914a directs the raising of an annual highway tax, to be expended under the direction of the village board "in the improvement of the streets, highways, and bridges in said village." Finally, sec. 1339 says that if any damage shall happen to any person, etc., by reason of the insufficiency or want of repair of any bridge or road in "any town, city, or village," the person so injured shall have a right of action for such injury. These several provisions seem quite clearly to thrust the obligation of building and of keeping up the bridges within their limits upon villages generally, although there may be those acting under special char

Battles v. Doll, 113 Wis. 357.

ters who do not have to carry the burden. We therefore reach the conclusion that the village of Prairie du Sac is not liable to taxation in aid of building bridges, under sec. 1319.

The second question requires but little attention. In obedience to his warrant, the defendant Doll has collected the tax in question from the inhabitants of the village. That same warrant required him to pay the same over to the county treasurer. His plain duty was to obey its commands. It was ample protection for him and his sureties. The village board had no power or authority to divert the sums collected by him to purposes or channels other than as designated in the tax warrant. The language of the opinion in Stahl v. O'Malley, 39 Wis. 328, is directly applicable to defendants' situation, and denies the right of the treasurer to withhold payment of the money collected from the county treasurer. We confirm the rule there stated as being wise and salutary. To permit the collecting officer to sit in judgment upon the legality of the tax collected by him would result in intolerable evil. As a ministerial officer, it was his duty to yield absolute submission to the mandate of his warrant, and allow the tribunals appointed by law to decide as to the validity of the tax he was called upon to collect. This view would naturally result in an affirmance of the judgment, but under the stipulation of the parties that, if the second question be answered in the negative, the plaintiff should only be entitled to a judgment for costs, the judgment as to damages is reversed, and as to costs is affirmed. Costs in this court will be taxed for appellants.

By the Court. So ordered.

Rogers v. Fate, 113 Wis. 364.

ROGERS, Respondent, vs. FATE, Appellant.

January 31-February 18, 1902.

Judgments by default: Refusal to vacate: Discretionary orders.

Where the trial court has, in the exercise of its discretion, refused to consider as meritorious excuses of a party for failure to attend an examination under sec. 4096, Stats. 1898, and has thereupon entered judgment, as upon a default, and, on the same excuses, has refused to vacate such judgment, such ruling will not be set aside, unless there appears to be a plain abuse of discretion.

APPEAL from a judgment and an order of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed.

This action was at law to recover an alleged agreed balance due from the defendant to the plaintiff upon accounting and settlement of partnership affairs, the complaint being duly verified. A verified answer setting up various defenses had been served, and, the cause being at issue, was noticed for trial at the June, 1901, term of the circuit court for Dane. county, and afterward, by agreement of parties, set for trial on the 17th day of July, within that term. On that day defendant's attorneys presented an informal certificate from a physician to the effect that the defendant, on the previous day, had been overcome by heat, and was not in a condition to attend court, and the cause was continued to the 22d day of July. On the same day the plaintiff gave notice and served subpoena for the examination of the defendant, under sec. 4096, Stats. 1898, at 9 o'clock of the 22d day of July, before a court commissioner. On the morning of the 22d of July, defendant's attorneys appeared in court and produced a certificate from defendant's physician in Chicago, where he resided, asserting health condition inconsistent with his appearance, and obtained a further continuance to the 25th, upon the payment of $10 as continuance fee. The defendant's at

Rogers v. Fate, 113 Wis. 364.

torneys also appeared before the commissioner and informed him of the defendant's health condition. No adjournment was had of that examination, and upon the expiration of the day the commissioner certified to the circuit court the notice and subpoena and the failure of the defendant to appear and submit to the examination. On the 24th of July, plaintiff obtained and served order to show cause why defendant's answer should not be stricken out and judgment given against him by default, returnable the following day before the circuit court, based upon the certificate of the commissioner and plaintiff's affidavit of substantially the foregoing facts, and further asserting, upon information and belief, that defendant had no intention of trying the case, and that his inability to attend was fictitious. Defendant did not appear on the 25th, but his attorneys did, and made further showing, by their own affidavit and the certificate of defendant's Chicago physician, that he was ill, and had been advised that he could. not travel and must not attend court, and that the latter would be injurious to him. On that morning the continuance fee for the 22d was paid to the plaintiff. Thereupon the court. entered an order that the answer of the defendant be stricken out, and that judgment be given against him in favor of the plaintiff, as upon default. Thereafter, on July 29th, judgment was entered in favor of the plaintiff against the defendant for $1,092.48, the amount claimed in the complaint, and for costs, which were taxed on the 2d of August, upon notice to the defendant's attorneys, and notice of the entry of judg ment was served on them on the 6th of August. The June term was adjourned sine die on September 9th, and the September term commenced on September 16th. On the 13th of September the defendant procured and served an order to show cause why the default and judgment should not be opened, and the defendant permitted to defend, returnable before the circuit court on September 16th, the first day of the new term. This was based upon affidavits of the defendant,

Rogers v. Fate, 113 Wis. 364.

his Chicago physician, Hotchkin, and an affidavit of his attorney attached thereto, and also upon certain specified affidavits filed at the time of the several adjournments, together stating substantially the facts above narrated. The plaintiff produced extended affidavit of his own when the motion was finally heard, September 30, 1901, narrating all of the circumstances preceding the taking of the default and the entry of judgment. From these affidavits it also appeared that the defendant in fact left Chicago on the 25th day of July for a voyage upon Lake Michigan and Georgian Bay, and was gone some ten days. The motion to vacate the default and judgment was denied. Defendant appeals both from the judgment and from the order refusing to open the same.

Henry T. Sheldon, attorney, and F. W. Hall, of counsel, for the appellant.

George W. Bird, for the respondent.

DODGE, J. The appeals in this case must both be resolved upon the rule of deference to the superior opportunity of the circuit court to view and fully understand the situation, and consequent controlling effect of the exercise of discretion by that court. While it is not to be denied that the record as presented here seems to show a fairly good excuse for the failure of the defendant to attend before the court commissioner for examination on July 22d, and for the neglect from which resulted the default and judgment pronounced against him, yet whether those excuses were made in good faith, or were merely evasions and trifling with the court, was before the circuit judge for consideration; and while the written evidence now before us of any such view is slight, yet it is not entirely wanting, and we cannot feel justified in saying that it was impossible for the circuit court, in the exercise of the broad discretion there vested, and of the various facts, circumstances, and events within its knowledge, and shown by its records, to conclude that defendant's absence from July 17th