| Wis. | Jan 4, 1860
By the Court,
We do not discover upon this record any good ground for setting aside the judgment. The judgment was entered upon a Warrant of attorney, given by the respondents for the amount due upon a promissory note, and the proceedings appear to be in strict conformity to section 12, chap. 140, R. S., 1859, and the subsequent sections in that chapter. In the commencement of the complaint, the plaintiff describes himself as assignee of James A. Smith and Charles B. Smith; and it is objected that the complaint should, by some appropriate averment, show that the action was instituted by him in his representative character, as assignee. The plaintiff had possession of the note, which was negotiable, and endorsed by the payees; and we tbink the mode of describing himself may be regarded merely as
Further, it is insisted that the plaintiff did not file a complaint, according to the requirements of the code. The complaint was the old declaration, upon the common counts, with notice that two promissory notes, copies of which were given, constituted the cause of action. This is perhaps not technically such a complaint as is required by the code, but it is a matter of form, rather than substance, and does not affect the substantial rights of the parties. We therefore think it should be disregarded, after judgment. § 40, chap. 125, R. S., 1859.
But again it is said that the affidavit of indebtedness is not in conformity to section 14, chap. 140, R. S., because it does not state that it was made for and on behalf of the plaintiff in the action. The affidavit, it appears, was made by Peyton R. Morgan, who deposed, in substance, that he was one of the attorneys for the plaintiff in the action, and that there was actually due the plaintiff, upon the promissory notes annexed to the complaint, the sum of four thousand two hundred and ninety-eight dollars and sixty-nine cents. Although the attorney does not state, in so many words, that he makes the affidavit on behalf of the plaintiff, yet he swears that he is one of the plaintiff’s attorneys in the action, and this fact discloses his means of information as to the precise amount due upon the notes, and also sufficiently shows his connection with the suit, and authority to make the affidavit. We consider the affidavit made to be substantially in conformity to the statute.
It was further objectéd, that the warrant of attorney only authorized a confession of judgment for the precise amount due upon the notes, while by computation it appears that judgment was confessed for less than the real amount due. We do not think that this is an error of which the respond
A still further objection has been taken to this judgment, which is, that it was entered in vacation, and although authorized by the statute, is yet void, under the constitution of this state. The argument in brief is this: that the rendition of a judgment involves the exercise of judicial power which can only be performed in this state by a court in term. There is nothing upon this record which shows that this judgment was not entered in court, except, perhaps, the circumstance that the judgment is signed by' a court commissioner; and therefore it is sufficient to say, that this question, as to whether the legislature cannot provide' for the entering of judgments upon warrants of attorney in vacation, does not fairly arise in the case. This question, which confessedly is one of considerable practical importance, has been raised and discussed in other causes argued at this term, and an opinion will be given distinctly upon the point, in which the validity of these judgments will be sustained. Wells vs. Martin, post.
Having concurred in the correctness of the decision which upholds these judgments, it may be permissible for me to state, in answer to the argument made upon the opposite side, in this case, one or two reasons which led my mind to the conclusion, that it was competent for the legislature to provide for the entering of judgments upon warrants of attorney in vacation. Nothing like a general discussion of the question is proposed. The judicial power being vested in certain courts, by the constitution, it is claimed, that the legislature cannot authorize the rendition of a judgment without the intervention of those courts. A judgment is defined to bé the decision or sentence of the law, given by a court of justice, as
There are various kinds of judgments; as where the facts are admitted by thé parties, but the law disputed; where the law is admitted but the facts disputed; where both the facts and law are admitted, as well as other judgments well known to the profession. In the case where both the law and facts are admitted by the parties, as they are upon a judgment by confession, there is no occasion for the exercise of the judicial faculty, and the entering of the judgment becomes a clerical or ministerial act. True, the language of the judgment may be in the case, “ consideratum est per curiam,” but still, if this form means anything, it is only that by the sentence of the law the plaintiff is entitled to recover. And when there is judgment on confession or by default, there is, properly speaking, no exercise of the judicial faculty, no consideration by the court.
But if this reasoning is considered too refined and nice to meet the objection, another answer may be given to the argument. The practice of entering up judgments in vacation was well established in England, and in many of the states, at the time of the adoption of the constitution. Within a year and a day from the date of the warrant of attorney, judgment might be entered according to its terms as of course, without leave of the court, either in vacation or term, 2 Arch. Pr., 23: “ And if either party die in vacation, within a year after giving the warrant of attorney, judgment may be entered up, of course, at any time after, in that vacation; and it will be a good judgment at common law, as of the preceding term,
Substantially the same practice prevailed in New York, where it is held, that within a year and' a day from the date of the warrant of attorney, judgment may be entered without obtaining any order for that purpose; but that after that period has elapsed, there must be an order either by the court or a judge at chambers. 5 Hill, 497. This practice of entering up judgments in vacation, on warrant of attorney, was well understood by the framers of the constitution, and we do not think they intended to change or abolish the practice by any provision of the constitution. We have seen that whenever an order is necessary for entering up judgment on a warrant of attorney, such order may be granted by a judge at chambers within ten years from the date of the warrant. The granting of this order was an ordinary duty of the judge at chambers.
Section 23, Article VII, of the constitution, reads as follows : “ The legislature may prbvide for the appointment of one or more persons in each organized county, and may vest in such person such judicial powers as shall be prescribed by law: provided, that such power shall not exceed that of a circuit judge of chambers.” From this provision it is apparent that the framers of the constitution, by vesting the judicial power of .the state in certain courts, could not have intended by this section, to restrict or deprive a circuit judge of any power which he might exercise at chambers at common law, or to inhibit the legislature from conferring ■ this same power upon court commissioners. And the legislature having provided that judgments on warrants of attorney might be entered without action when the judgment is signed by a judge or court commissioner, and the other provisions of the statute
It is clear, that if the position be sound, that a judgment, by the force of the term, implies, in all cases, deliberation and consideration by a court, and is always an act of the judicial mind applied to the law and facts in question, there can be no such thing as a judgment entered in vacation anywhere. For the proposition assumes that a court alone is competent to render a judgment, and if so, then no judgment entered in vacation is valid, since it is no judgment. Now, whether by legal relations and legal fictions, or by any other process of reasoning, judgments entered on a warrant of attorney in vacation, can be supported, quite certain it is, that they have been considered good and valid judgments, when no other objection to them existed, and where the practice of entering them in vacation has obtained.
In some of the states, neither the statutes, or rules of court, provide for the entering of judgments by confession in vacation. The legislature of this state has seen fit to adopt the practice, and I think it was competent for it to do so. Courts have a general discretionary control over judgments entered upon warrant of attorney, and can protect the defendant from any imposition or fraud which may intervene. It does not appear that there was any error in entering the judgment in this cause, and we therefore think that the circuit court improperly set it aside.
The order of the circuit court, setting aside the judgment, is reversed.