#### Stoll, Executor, Appellant, vs. Pearl and others, Respondents.

*May 10*

October *18, 1904.*

*Judgment by default: Refusal to vacate: Dis'cretion: Appeal: Dis> respectful brief: Striking from files.*

1. An order refusing to set aside a judgment by default will not be disturbed on appeal except to remedy a clear abuse of judicial authority.

2. Under Supreme Court Rule XXVII, a brief containing matter-disrespectful to this court is stricken from the files, with costs..

Appeal from an order of the circuit court for Chippewa county: A. J. ViNje, Circuit Judge.

*Affirmed.*

Plaintiff, as executor of the last will of John Pearl, deceased, April 23, 1901, commenced this action of replevin in *620the circuit court for Eau Claire county, Wisconsin, to recover of the defendants, Mr. Pearl’s mother and his two sisters, $3,000, being part of the proceeds of-the policy of insurance upon his life in the Mutual Benefit Life Insurance Company, which policy it vras claimed deceased, shortly before he died, in fraud of his creditors and'his wife — who was then seeking to obtain a divorce from him and a part of his property— assigned to the defendants subject to an outstanding claim thereon of the Chippewa Yalley Bank. Such proceedings were had in the action to place plaintiff in the immediate possession of the property in dispute that the sheriff took from the possession of the defendants $1,840 thereof, and they failing to take such proceedings as to entitle them to a return of and to retain the property pending the litigation, the same was duly delivered to R. K. Boyd, plaintiff’s surety, in trust for him. Defendants seasonably answered the complaint, putting in issue the claim of the plaintiff and pleading title and right of possession of the property in themselves. Thereafter the place of trial of the action was changed to Chippewa county, Wisconsin. December 20, 1902, the cause was duly called for trial in such county. Blaintiff failed to appear. Such proceedings were thereafter had that the issues formed by the pleadings were decided in favor of the defendants and judgment was rendered accordingly for a return of the money taken by the sheriff as aforesaid, with interest and ■costs agginst the plaintiff and his surety. October 12, 1903, plaintiff moved the court on affidavits to vacate the judgment or change it to one of dismissal without prejudice to the prosecution of a pending equitable action in Eau Claire county, Wisconsin, to recover the property in controversy for the benefit of the creditors of plaintiff’s testator. The moving papers were to the following effect:

A short time before Mr. Bearl died, being indebted in a large amount, and in anticipation that his wife, who was pursuing him for a divorce and a portion of his property, might *621succeed, and also in anticipation of bis surviving but n short time, without consideration he assigned, of a $5,000 policy of. life insurance in the Mutual Benefit Life Insurance Company of Newark, New Jersey, $1,000 to the defendant *Margaret Pearly*his mother, and $1,000 each to *Mary*and *Kate-Pearly*his sisters. Part of the policy had been previously assigned to the Chippewa Yalley Bank to secure the payment, of obligations aggregating $1,100. A few days after the aforesaid occurrence he made a paper directing payment of the proceeds of the policy, over the claims of the Chippewa 'Yalley Bank, his mother and sisters, to his two minor sons.. At the time such assignment was made, without consideration, he conveyed a large amount of other property to certain of' his relatives. He was then insolvent, and so remained up to-the time of his death, which occurred a few weeks after such conveyances. Prior to his decease and subsequent to such assignments, his wife obtained a decree of divorce and a judicial-, award to her of $2,000 of her husband’s property, the same-being made, so far as the court had power to do so, a lien, upon the said insurance policy. The date of his death was. December 11, 1900. Plaintiff was duly appointed guardian, of the minor sons and executor of his last will. Soon after administration of his estate commenced it was found that there-was very little property available to pay the claims against it aggregating many thousands of dollars. The defendants, as assignees of $1,000 each of the insurance as aforesaid, made claim therefor and without objection by the plaintiff, who knew the facts, received the same. He made claim,, as guardian, to the insurance money intended as aforesaid for his wards, and received $876.61. Subsequently, upon the-theory that the assignments to the defendants and the designation of the children as beneficiaries were ineffective, and that the whole of the insurance belonged to the estate of Mr. Pearl to be administered by plaintiff as executor, he commenced an action against the insurance company upon the *622policy to recover tbe same and also tbis action to recover tbe insurance money paid to them. Tbe purpose of tbis action was to impeach the transfer of tbe insurance to tbe defendants as fraudulent and void as to Pearl’s creditors, and it was intended to raise tbe same question in tbe action against tbe in•surance company.

Tbis action being on the calendar of tbe circuit court for Eau Claire county for trial, and tbe defendants being ready “therefor, plaintiff prevented it by an affidavit for a change of venue. Such change was ordered to Chippewa county, Wisconsin, but through tbe neglect of plaintiff’s attorneys it was not fully consummated. Defendant’s counsel thereafter noticed tbe cause for trial at the March term for 1902, of tbe •circuit court for Eau Claire county, and when tbe same was called announced bis readiness to proceed. Plaintiff’s coun■sel then petitioned for further delay, and succeeded. Thereafter defendants’ counsel noticed tbe cause for trial at tbe September term of such court for 1902, and when tbe same was called therefor such counsel announced readiness to pro■ceed. Thereupon plaintiff’s counsel caused further delay in tbe matter by making a second application for a change of venue. Such application was granted, tbe cause being again ordered sent to Chippewa county for trial. Tbe change was fully effected and defendants’ counsel thereafter noticed tbe •cause for trial at tbe October term, 1902, of tbe circuit court for such county. Upon its being called for trial at such term he announced readiness to proceed. Plaintiff’s counsel postponed tbe bearing of tbe cause in manner aforesaid, in part because of being uncertain whether tbe remedy be was pursuing was proper. His purpose was to have tbe cause against tbe insurance company finally disposed of before tbe trial of tbis one. Prior to tbe last noticing for trial as aforesaid, such proceedings bad occurred in tbe insurance company action that judgment bad been entered therein adverse to plaintiff, 'be bad appealed to tbis court, and tbe appeal was about to be *623heard. In that situation, to effect bis aforesaid purpose, be petitioned tbe circuit court for Chippewa county for a temporary stay of proceedings in this action, setting forth, among other things, the pendency of said appeal, that it, with other appeals in which counsel was interested, prevented him from giving attention to the trial of this cause, and further that plaintiff could not safely proceed to such trial because many documents necessary to be used thereon were on file in this court, the same being part of the record on such appeal in the insurance company case. The result was that trial of this cause was stayed till after the decision of this court upon such appeal, it being ordered that upon such decision being promulgated such cause should be set down for trial without a jury at’such time and place as the circuit judge might deem proper. The court was at the same time informed in writing that if, by the decision upon the appeal, the judgment should be reversed because plaintiff was entitled to recover notwithstanding his having misled the insurance company into paying the insurance money to the defendants; or, if the judgment should be affirmed because the assignments to the defendants were valid and gave tbe assignees rights superior to the rights of creditors of Pearl, deceased, judgment might be rendered dismissing the complaint herein as upon plaintiff’s failure to appear; but that if this court should decide that plaintiff could not recover of the insurance company because, although originally he was entitled to the insurance fund, he had waived his right thereto as against such company and must look to the persons who had received the fund from it, he would desire a trial of this cause as soon as practicable, believing such decision to in effect establish his right to recover such money.

Subsequently, the decision upon the appeal was rendered, the judgment of the circuit court as to the defendants being affirmed upon the ground that the paper purporting to convey $3,000 of the insurance to them was an assignment, not a' mere designation of beneficiaries, and was good under the cir-*624eumstances as a defense to plaintiff’s claim against tbe insurance company. The question of whether such paper was good as to the creditors of the deceased was not deemed involved and not decided. Thereafter defendant’s counsel applied to the circuit court for Chippewa county, presenting a copy of such decision and claiming that the same was decisive of the issues in this action, to have it speedily set for trial. An order was entered accordingly, December 20, 1902, being named. A copy of the order was served on plaintiff’s attorney December 4,1902. Shortly before the day so set for the trial, Elizabeth Pearl, by advice of plaintiff’s counsel, in her own behalf as creditor of the estate of John Pearl, deceased, and of all others similarly situated, commenced an equitable action in the circuit court for Eau Claire county against the defendants herein, the plaintiff, and Robert IL Boyd, his surety, and others, to recover all the property conveyed by Mr. Pearl in fraud of such creditors as aforesaid. The attorney for the plaintiff herein was attorney for the plaintiff therein. By an injunctional order in the latter plaintiff herein was restrained from further prosecuting this action. It was intended thereby to prevent the final disposition of this case at the time set for the trial thereof. Such disposition nevertheless occurred as before stated, judgment being perfected except as to the taxation of costs, December 20, 1902. Thereafter plaintiff’s attorney obtained an order in this action staying such taxation till after the injunctional proceeding in the equitable action was determined. Later perfection of the judgment herein was permitted. June 26, 1903, thereafter, application was made herein to stay the collection of the judgment until after the termination of the equitable action. It was pressed upon the attention of the court upon the theory that such judgment did not prejudice the granting of the relief prayed for in such action, but that defendants herein being insolvent, if permitted to obtain the fruits of such judgment, the same could not be recovered bach; and that, while plaintiff and his *625surety might be compelled to respond in this action, they would not be relieved from again responding in the equitable action. It was represented that the reason why plaintiff did not oppose the rendition of judgment herein was because he became satisfied by the decision upon the appeal aforesaid that this action was not his proper remedy. Later, and after a delay of about ten months from the rendition of the judgment, this motion was made to vacate the same upon the ground that it would or might be, if allowed to stand, a bar to any recovery of the defendants herein in the equitable action. Before such motion was made such defendants had pleaded such judgment as a defense in such action. The first in junctional order in the equitable action, restraining the defendants from proceeding to enforce the judgment, was vacated, but subsequently a second such order was obtained, and upon the theory that such judgment of itself would not prejudice the plaintiff’s rights in 'the equitable action, but that the collection thereof would. Such ordpr was in force when the motion to vacate such judgment was made.

Plaintiff’s attorney commenced the equitable action as a substitute for this action, and neglected to appear and discontinue the latter when it was called for trial because he believed the in junctional order granted in the equitable action would prevent such trial and that in any event any judgment herein would not be *res judiada*of any question raised in the equitable action. In the complaint in such action it was stated, among other things, that the deceased, John Pearl, conveyed the insurance policy aforesaid, without consideration, to the defendants herein, and conveyed other property to certain persons named, likewise without consideration; that he was insolvent at the time thereof; that such insolvency existed up to the time of his death; that when the conveyances were made he knew his financial condition and that in the divorce action pending against him his wife was liable to obtain a judgment favorable to her, and that such judg*626ment would probably award to ber a considerable portion of bis property; that sucb transfers were made to defeat bis then existing creditors and bis wife from realizing upon any award of property that might be made to ber in tbe divorce action; that sucb fraudulent design was participated in by tbe persons wbo received tbe transfers. Further facts were alleged showing that substantially tbe only properly available to pay tbe debts of tbe deceased, amounting to several thousand dollars, was that transferred as aforesaid; that it was tbe purpose of tbe court in tbe divorce action to make tbe award of $2,000 to Mrs. Pearl a claim upon ber husband’s insurance policy; that be transferred tbe same to tbe defendants in anticipation of sucb course being taken, and to defeat tbe ■same, tbe persons receiving tbe transfers participating in sucb purpose; that all of tbe parties to this action were made parties in that action, with all others concerned in tbe fraudulent transfers wbo received any part of tbe property, and that Mrs. Pearl, on behalf of herself and tbe other creditors of tbe ■deceased, commenced tbe equitable action only after demanding of tbe plaintiff herein, as executor of ber divorced and deceased husband’s will, that be should commence sucb action, and that be refused to do so unless indemnified by ber for costs and expenses, which she was unable to do. In all tbe proceedings mentioned tbe attorney for plaintiff acted in good faith according to tbe lights be bad, to recover tbe insurance money paid to tbe defendants, that be might apply tbe same for tbe benefit of tbe creditors of John Pearl, deceased, acting all tbe while upon tbe advice of tbe same counsel. He made a mistake in commencing this action instead of an equitable action, and a mistake in not discontinuing this action instead of allowing it to proceed. He appealed to tbe court by this motion for relief from such judgment as soon as be became convinced of sucb errors.

Affidavits of merits were presented on tbe motion as follows: By bis attorney to tbe effect that be resided in Eau *627•Olaire, Wisconsin, and was familiar witb tbe facts set forth .in tbe complaint in this action and in tbe equitable action, and that tbe plaintiff in tbe latter action bad fully stated tbe cause therein to Mm, and that be bad advised her therein that she possessed a valid and substantial cause of action as set forth in tbe complaint by plaintiff in the usual way. Tbe motion was denied and plaintiff appealed.

Eor tbe appellant tbe cause was submitted on tbe brief of *L. A. Doolittle.*

Eor tbe respondents there was a brief by *Arthur H. Shoe*maker., attorney, and *James Wickham,*of counsel, and oral argument by *Mr. Wickham.*

Tbe following opinion was filed June 10, 1904:

Maeshall, J.

Tbe application for relief from tbe judgment was made under sec. 2832, Stats. 1898. It was addressed to tbe sound discretion of tbe trial court. Upon familiar principles tbe result in such court is beyond tbe reach of this court except to remedy a clear abuse of judicial authority. *Kalckhoff v. Zoehrlaut,*43 Wis. 374; *Seymour v. Chippewa Co.*40 Wis. 62; *Milwaukee M. L. & B. Soc. v. Jagodzinski,*84 Wis. 35, 41, 54 N. W. 102; *Smith v. Wilson,*87 Wis. 14, 18, 57 N. W. 1115 ; *Pfister v. Smith,*95 Wis. 51, 54, 69 N. W. 984. It has often been stated here that under such rule a strong affirmative showing must be made indicating beyond reasonable controversy inexcusable judicial action in order to warrant this court in condemning it. Testing tbe record before us by that, we are unable to bold tbe order complained of to be wrong. It probably seemed to tbe trial court that by a long series of mistakes so much useless and expensive litigation bad occurred to vindicate tbe rights of tbe creditors of John Pearl in tbe property in controversy, that if tbe way were open for its recovery, so far as regards tbe judgment in question, there would be very little of it that could reach Ihem; that so much time of tbe courts bad been uselessly oc*628cupied witb tbe matter, counsel experimenting first witb one remedy and then witb another, that after plaintiff’s allowing, this cause to go by default when it might have been discontinued so as not to interfere with litigating the questions involved in the equitable action, and then taking some ten months to. find out the mistake of failing to do so, and in the meantime, oblivious of such mistake, pursuing a course causing much useless expense to the defendants and the public,— justice to all concerned demanded that the relief asked for should be denied and that the controversy, so far as closed by the judgment in question, should remain forever closed. We are inclined to agree with that view.

*By the Gourt.*— The order is affirmed.

The appellant moved for a rehearing.

The following opinion was filed October 18, 1904:

Cassoday, C. J.

In June last this court affirmed the order-of the trial court refusing to set aside a judgment of that court entered upon default, on the ground that it had not been made to appear that there had been any abuse of discretion in refusing the application. The facts upon which such order was based were quite numerous, and are there stated at length and in detail, but the opinion itself is quite short. Counsel for the plaintiff filed a motion for a rehearing, and has submitted what purports to be a printed argument of fifty-one pages in support of his motion. Much of it is a reiteration of what had been fully considered. No principle of law mentioned in the opinion filed has been challenged. The only misstatement of fact pointed out consists in stating that the second application for a change of venue was made by the plaintiff’s counsel, whereas it was in fact made on behalf of the defendants. That occurred early in the proceedings, and was stated merely as a part of the detailed history of the case, but was without any controlling significance as bearing upon the-*629question decided. Of course, the mere fact that the trial court, or this court, drew from the record inferences or conclusions which differed from those of counsel, cannot be regarded as misstatements of fact. There is nothing in the lengthy “brief” submitted, requiring an answer; much less .a rehearing.

It is apparent from the brief itself that it was not made for the purpose of securing a rehearing, but merely as an excuse for insulting this court and impugning its motives. This is obvious from the fact that several pages of the brief are devoted to the supposed wrongs which have been inflicted upon the counsel or his clients in other cases, with the admission that such “diversion” “has no bearing upon the point under discussion.” Tor twenty-six years a rule of this court — written by Chief Justice Eyas — has prohibited the printing of “any brief disrespectful to this court, or any member of it, or to the court below, or to opposing counsel.” Supreme Court Hule XXVII. A wilful disregard of this rule by one who has been admitted to the bar of this court is not only unprofessional, but a contempt of court. The brief in question is a gross violation of that rule. If counsel for the plaintiff expects to continue practice in this court, it will be necessary hereafter for him to comply with this rule of the court. Xo such scurrilous document will be allowed to incumber the records of this court. The rule requires any such brief to be stricken from the files of this court.

*By the Court.*— It is ordered that the brief of counsel for the plaintiff on the motion for a rehearing be, and the same is hereby, stricken from the files of this court, with $25 costs, to be paid by the plaintiff to the attorney of the defendants for such imposition upon him and the court; and it is hereby further ordered that the motion for a rehearing be, and the same is hereby, denied, with $25 costs, as prescribed by statute (sec. 2950, Stats. 1898).