* Motion for rehearing denied, with $25 costs, on September 14, 1943. *Page 391 The orders were made in an action commenced on April 3, 1941, by Amalgamated Meat Cutters Butcher Workmen of N.A., A.F.L., Local Union No. 73, Harry Sutherland, Stanley Balcerak, Bernard Zaffron, Alphonse Kochanski, Myron Lepkowski, and Joseph Szmmagalski against Joseph Smith and Joseph Smith Company, a corporation. The complaint alleged that in October, 1937, Local No. 73 and Smith, *Page 392 who was engaged in the butcher business, executed an employment contract to run for a period of one year and thereafter until a new contract was reached and signed; that no new contract was thereafter reached and signed. The contract provided for exclusive employment of members of Local No. 73, at a minimum wage. It was alleged that defendant violated the agreement by hiring persons who were not members of the union, and that during the period from 1937 to 1941 Smith paid wages to the individual plaintiffs which were below the contract minimum. There were detailed allegations as to how long each of the individual plaintiffs worked for Smith and as to how much each plaintiff should receive to balance the difference between the contract price and the amounts actually paid them. The aggregate of these amounts was $6,203.
In August, 1941, a demurrer to the complaint was overruled and in October, 1941, defendant answered. In February, 1942, an order was obtained advancing the case for trial because of the prospective military service of two plaintiffs. On March 5, 1942, a conference was had between the parties and their attorneys and a settlement dictated into the record. This was filed on November 16th. The stipulation provided that payment of $1,000 shall operate as a full and complete satisfaction of all money claims and demands of individual plaintiffs, such payments to be made in instalments, $200 on April 1, 1942, $100 on the first of each month thereafter, with a three-day grace period. The stipulation provided that on affidavit as to any default in payment, plaintiffs might have judgment against defendants for $6,203, the amount demanded in the complaint. The stipulation also provided for entry forthwith of an injunction requiring defendants' compliance with the contract of 1937. At the same time, defendants signed a contract with the union substituting a definite one-year term and omitting the phrase "and thereafter until a new contract reached and signed." On March 31, 1942, the trial court made and entered an order on the *Page 393 stipulation and findings of fact and conclusions of law in support of the injunction. The judgment of injunction was entered on April 6th. On April 3d, Smith informed plaintiffs' attorney that he was unable to raise the $200 due April 4th and asked him to accept $100 and to defer the other $100 until later. Plaintiffs' attorney disavowed authority to waive the terms of the stipulation, but promised that he would let Smith know by the 4th of April. On April 4th Smith claims to have been at the office of plaintiffs' attorney and that the office was closed. According to plaintiffs' attorney he declined to waive or stipulate to anything or to do more than report the matter to his clients. On April 7th Smith presented a $200 check to plaintiffs' attorney which bore an indorsement waiving default rights of plaintiffs and plaintiffs' attorney refused the check. On April 13th, under the stipulation, an order was entered for a money judgment against defendants in the aggregate sum of $6,203. There was some suggestion on the part of the trial court at this time that the matter might be adjusted but nothing came of that. On April 17th, judgment was entered for the full amount of the demand of complaint, execution issued and supplementary proceedings started. Service of notice of entry of judgment was made on April 20th. On July 13th the defendants moved to set aside the judgment on the ground that it was unconscionable and devoid of equity and offering payment of $500 arrearages under the stipulation. Plaintiffs' counteraffidavit set up that more than sixty days had expired since notice of entry of judgment, and that during February, 1942, when defendants were resisting plaintiffs' motion to have the matter set for trial, Smith had made an assignment of his property to his wife without any consideration. On August 24th, a decision was rendered denying defendants relief from the judgment, the court referring to and evidently relying at least in part upon the conveyance by Smith to his wife of all his property. The court also asserted that Smith's willingness to pay $1,000 in settlement was a substantial *Page 394 admission that he had tried to avoid his obligations under the contract. This order was formally entered on September 16th and is one of the orders appealed from.
On November 5th, an order to show cause was brought on behalf of defendants before the trial court to obtain equitable relief from the orders at the foot of the judgment. The various matters heretofore referred to were set up and an explanation given as to the purpose of the transfers to Smith's wife. It was alleged that the enforcement of the judgment would result in enforcing a penalty and would be unconscionable and inequitable and petitioner offered to pay $1,000 and the $50 penalty indicated by the trial court, together with interest and plaintiffs' disbursements. This motion was denied, the court holding that $6,203 judgment was not a penalty or forfeiture but liquidated damages and that the situation justifies the inference that defendant fraudulently attempted to defeat plaintiffs' claims. This order was entered on November 24th. On December 14, 1942, this appeal was taken. The orders appealed from were entered on September 16, 1942, and November 24, 1942. The principal contention of appellants is that the stipulation to settle for $1,000, but if this sum were not paid, judgment to be entered for $6,203, is a contract for a penalty and unenforceable; that it makes no difference that this contract was a stipulation in an action or that the contract was cast in alternative form. In this connection see Berrinkottv. Traphagen, 39 Wis. 219; Minn Billiard Co. v. Schwab,179 Wis. 129, 190 N.W. 836; State ex rel. Southern C. Co. v. CircuitCourt, 187 Wis. 1, 203 N.W. 923. We think that the question proposed by this contention does not represent the proper starting point in this controversy. We are here dealing *Page 395 with a judgment entered upon this stipulation. Sec. 252.10 (1), Stats., provides that all judgments and court orders may be reviewed by the trial court at any time within sixty days from the service of notice of entry thereof, but not later than sixty days after the end of the term of entry thereof. The judgment upon stipulation was entered on April 17, 1942. The notice of entry of judgment was served on April 20, 1942. The motion to set aside the judgment by defendants was made on July 13th — not only more than sixty days after service of notice of entry of judgment, but also after the end of the term. The court had lost all jurisdiction to review the judgment, and defendants' motion coming after the term, the court's sole jurisdiction to set aside the judgment except for fraud upon the court, which is not involved here, is created by sec. 269.46(1) which provides in substance that the trial court may upon notice and just terms at any time within one year after notice thereof relieve a party from the judgment, order, stipulation, or other proceeding against him obtained through his mistake, inadvertence, surprise, or excusable neglect. The application of July 13th, on which the September 16th order is based, sets up none of the matters listed in sec. 269.46(1) as grounds for relief, nor do the affidavits show that the judgment was obtained through mistake, surprise, or excusable neglect. There is applicable to the facts of this case what was said by this court in In re Coloma State Bank, 229 Wis. 475,477, 282 N.W. 568. In that case appellant relied upon sec. 269.46(1). "The petition and order to show cause did not make any showing that the order against the Banking Commission had been obtained through mistake, inadvertence, surprise, or excusable neglect. It merely asked that the order be opened for the purpose of reversing its alleged erroneous features." That is precisely what the application of July 13th amounted to. The petition of November 5th, while asking for relief at the foot of the judgment upon the grounds that its enforcement would result in enforcing a penalty and would *Page 396 be unconscionable, is merely an attempt in different language to obtain a rehearing of the application of July 13th. Wendtv. Dick, 219 Wis. 230, 262 N.W. 576. The time for appealing from the judgment has fully expired. Under these circumstances, we consider that contentions as to the nature of the stipulation are not before us. We are dealing here with a valid judgment entered without fraud or imposition upon the court and not through defendants' mistake, inadvertence, surprise, or excusable neglect. The statutory period for review by the trial court had elapsed before any motion to review was made. The time for appeal from the judgment has passed. If the stipulation considered solely as a contract called for a penalty it was no more than error for the trial court to enter judgment upon it. The trial court had lost all jurisdiction to review the judgment.
The suggestion that by asking for relief at the foot of the judgment in the application of November 5th the jurisdiction of the trial court was somehow restored is wholly without merit. So far as the judgment for $6,203 is concerned, this is an ordinary judgment at law in which the court had no control of the judgment other than that accorded it by statute. The cases of Levin v. Grant, 238 Wis. 537, 298 N.W. 63,300 N.W. 169; Loehr v. Dickson, 141 Wis. 332,124 N.W. 293; and St. Joseph's Hospital v. Maternity Hospital,224 Wis. 422, 429, 272 N.W. 669, 273 N.W. 791, are all cases in which the subject matter of the action was within the control of a court of equity and the court had jurisdiction to grant relief at the foot of the judgment. In the St. Joseph's HospitalCase this court said:
"As indicated above, the decisions above cited under the Kansas statute are based upon the proposition that the judgments involved were final judgments of the court, — judgments that absolutely ended the litigation between the parties. A judgment of strict foreclosure of a land contract does not produce absolute finality. In such judgments, a subsequent order barring the defendant's interest and claims for want of redemption *Page 397 is essential in order to declare and quiet title in the plaintiff, and a writ for removing the defendant from the premises is contemplated in case it becomes necessary. Proceedings at the foot of the judgment are a matter of course in these cases and the litigation is not at an end until they are taken. It would seem, a priori, that until the final order contemplated, an order making the judgment absolute, has been entered, anything discretionary might properly be done by the court that has material bearing upon the equities of the parties respecting the order finally ending the litigation between them."
This rule is plainly inapplicable here for the reasons already indicated.
By the Court. — The order of September 16, 1942, is affirmed. The appeal from the order of November 24, 1942, is dismissed.