
    Brihm, Respondent, vs. Ætna Insurance Company of Hartford, Connecticut, Appellant.
    
      December 9, 1926
    
    January 11, 1927.
    
    
      Judgment: Relief from judgment on default: Discretion of court: Terms: Payment of counsel fees.
    
    Plaintiff on March 4th served a summons and complaint in an action to recover for a fire loss on an insurance policy, and on March 23d a petition by defendant for. removal to the federal court was served. The bond accompanying such petition being insufficient, plaintiff took a default judgment on March 27th, and defendant, after unsuccessful attempts in the federal court to have the cause removed, applied for leave to answer in the state court, which was granted, and tire-judgment vacated upon condition that defendant pay substantial counsel fees to plaintiff. Held, that the terms imposed, while large, do not disclose an abuse of discretion, as the services and expenses intermediate the taking of the judgment and its vacation were caused by the acts of the defendant.
    Appeal from an order of the circuit court for Polk county: W. R. Foley, Circuit Judge.
    
      Affirmed.
    
    Action to recover for a fire loss of July 28, 1925, on an insurance policy issued by defendant on plaintiff’s farm building and personal property. Summons and complaint were served March 4th and default judgment taken on March 27, 1926, for $6,644:97, including $40.97 costs.
    On March 23d, through other than present counsel, a petition had been filed in said- circuit court by defendant for removal to the federal court. The bond accompanying such petition was insufficient. On March 29th an amended bond was filed, and plaintiff’s counsel received by registered mail notice of the petition mailed from Milwaukee on March 27th. The court denied the removal. A certified copy of the record was then filed in the United States district court at Superior. That court, on plaintiff’s application, on May 11th remanded the cause to Polk county. May 26th the defendant applied to the court below for vacation of the judgment and for leave to interpose a verified answer.
    June 1st such relief was granted upon condition that defendant, within twenty days, pay to plaintiff a sum made up of the following items:
    Expenses and fees taking judgment. $25 00
    Four days’ tíme briefing removal question. 100 00
    Arguing motion in circuit court. 25 00
    Arguing motion in federal court. 75 00
    Expenses attendant in federal court.. 18 75
    $243 75
    By error, not called to the timely attention of the court below, this sum was stated in the order at $248.75.
    From so much of the order as fixed such condition defendant appeals.
    
      W. T. Doar of New Richmond, for the appellant.
    For the respondent the cause was submitted on the brief of Kennedy & Yates of Amery and Chas. A. Taylor of Barron.
   Eschweiler, J.

The court below relieved the defendant from the default judgment, excused its delay in serving an answer, and permitted such to be presently done pursuant to sec. 269.46, Stats., which provides that such relief may be granted “in discretion and upon such terms as may be just.” Appellant contends that there was here an abuse of judicial discretion in the fixing of such a substantial sum as terms. It relies upon Port Huron E. & T. Co. v. Clements, 113 Wis. 249, 89 N. W. 160, the cases there cited at p. 258, and other cases.

It is not disputed but that defendant, upon proper procedure taken within the time for and before answering, would have been entitled to remove the cause to the federal court. It failed, however, to follow the required steps, and the services and expenses included in the allowed items were consequent upon such efforts on its part. The plaintiff was within his rights, under our procedure, in taking the default judgment as he did, and then, to maintain his position in court, he was compelled to follow the defendant in its vain wanderings around the circle. While the required amount is large compared with that allowed in the cases supra, and others such as Sawicki v. Wulff, 169 Wis. 377, 172 N. W. 722, and Wessling v. Hieb, 180 Wis. 160, 192 N. W. 458, yet we are not ready to say that the requirement of the payment of the expenses reasonably incurred by respondent in the cause, intermediate the defendant’s default and the vacating of the judgment, is in abuse of the judicial discretion that the court below might exercise. The $5 error in computation will undoubtedly be corrected without formal proceedings being necessary here or below.

By the Court. — Order affirmed.  