Duras v. Keller

176 Wis. 88 | Wis. | 1922

Rosenberry, J.

It is the claim of the defendants that the court was without jurisdiction or authority to enter the judgment appealed from.

' Before proceeding to consider that matter it will be necessary to dispose of some preliminary matters. The determination entered on October 20th, although in form an order, was in fact a final judgment as defined by sec. 2882, Stats., for the reason that it was a final determination of the rights of the parties in the action. Although not based upon a'verdict or findings of the court, it was a judgment by consent and operated to waive any defects in the pleadings or any irregularities or grounds of objection which would have constituted error if the judgment had been rendered upon a trial. 23 Cyc. 729, and cases cited. No motion has ever been made to set aside that judgment and it has not in fact been set aside. The trial court held that by the order of November 13, 1920, the civil court, in effect, vacated the previous order. We are not advised upon what ground this conclusion is based. It would seem elementary that where there is one final judgment in an action there cannot be a second judgment in that action without having the first judgment vacated. Neither party asked to have the first judgment vacated, nor is any ground assigned upon which an order to vacate might be based. The order directing entry of the second judgment recites: “The plaintiff and defendants arrived at a settlement of said case in the sum of $375, which was to be paid by the defendants to the plaintiff; that immediately after said agreement was reached the attorney for the defendants, in open court and in the presence of the jury, stated to the court that the parties to this action had agreed upon an amicable settlement, and the court thereupon dismissed the jury and dismissed the case; that thereafter the defendants refused to pay the sum of $375 to the plaintiff, and the court, being advised of said fact and after a full hearing thereon by the parties and after being well and sufficiently advised in the premises,” entered the order for judgment referred to in the statement of facts. The order to show cause was based upon the affidavit of plaintiff’s attorney to the effect that “the defendants submitted a proposition of settlement of $375 to your affiant, and your affi-. ant, after consultation with his client, accepted said offer- in open court; that thereupon the jury was dismissed and the said defendants agreed to pay the sum of $375 on the following day; that thereafter the attorney representing the defendants notified your affiant that defendants had declined to pay pursuant to said terms in open court.” The alleged failure of the defendants to carry out a promise to be performed at a subsequent time cannot, in the absence of a stipulation to that effect, constitute grounds for relief from the judgment of dismissal entered by consent at the time of the making of the promise. There is not the slightest intimation in the entire record that the defendants ever stipulated that judgment might be entered against them for the agreed amount. The original judgment not having been vacated and no grounds appearing upon which such relief might be properly granted to the plaintiff, the order for the second .judgment •and the entry thereof were erroneous.

Under the provisions of secs. 2882 and 2883, Stats., not more than one judgment can be entered in an action. Loomis v. Besse, 148 Wis. 647, 135 N. W. 123. A judgment by consent is but a contract between the parties put upon the record with the sanction and approval of the court. Holloway v. Durham, 176 N. C. 550, 97 S. E. 486. The plaintiff having agreed that in consideration of the defendants’ promise to pay $375 at a later time the action should be dismissed upon the merits, and such agreement having, been given effect by the judgment of the court, it must stand as a final disposition of the rights of the parties in that action unless vacated or set aside in the manner provided by law.

The defendants claiming that their consent to the,making of the promise was obtained by duress and misrepresentation, we make no intimation in any way as to the rights of the parties except so far as they are necessarily involved upon this appeal.

By the Court. — Judgment of the circuit court affirming the judgment of the civil court is reversed, and cause remanded with directions to set aside and vacate the judgment entered November 22, 1920.