46 Wis. 703 | Wis. | 1879
The only question involved in this appeal is, whether the court had power to set aside this judgment after the expiration of the next term of the court after the entry thereof.
For the purpose of this appeal, the case must, be treated as though the motion to vacate the same was originally made on the 24th day of August, 1878. As the former motion had not been heard at the October term, 1877, and no continuance of such hearing had been made by the court, that motion fell with the adjournment of the October term of said court. We
If the judgment was not void, it is unnecessary to cite the authorities which hold that the court has no power to vacate the same after the expiration of the term at which the same was entered, when entered in court, nor after the expiration of the next term after the entry thereof, when entered by the clerkof the court in vacation.
The learned counsel for the respondent does not controvert this rule, but insists that the judgment was void, and not merely irregular. If the judgment was void, the motion was in time; if irregular merely, it was too late.
There are but three reasons urged upon the court by the learned counsel for the respondent for holding the judgment void: first, because the demand for a bill of items of the plaintiffs account operated as a stay of proceedings on the part of the plaintiff, until such bill of items was delivered; second, because, the defendant having appeared in the action before the time to answer had expired, notice of the application for judgment should have been given to his attorneys; third, because there was not sufficient proof of personal service of the summons and complaint upon the defendant.
The third cause assigned, we do not think has any foundation in fact. From an examination of the affidavit of the person who served the summons and complaint, we are inclined to hold that it sufficiently shows that the person upon whom the same was served was known to the person who served it, to be the person named as the defendant in the summons.
In the cases above cited, there was no appearance by the defendant before the entry of judgment, except in the case of Northrup v. Shephard; and in that case it does not appear that the attention of the court was called to the provisions of the statute defining the effect to be given to a personal appearance by a defendant. The law gives power to the clerk to enter judgment, in actions arising upon contract for the recovery of money only, upon proof of personal service of the summons and complaint upon the defendant, and that no answer has been received. It provides, substantially, that the defendant shall have notice of the claim made by the plaintiff against him, and gives him time to make answer, and, when he declines to make any answer, authorizes judgment as a matter of course, in favor of the plaintiff. The voluntary appearance of the defendant, after a service either personally or by copy, is the best of evidence that he has notice of the action commenced against him; and there is, therefore, no necessity thereafter of making any formal proof of the service of the
The second reason for holding the judgment void is clearly not well taken. When the action is upon contract, and for the recovery of money only, and the complaint is sworn to, no notice of the application for judgment need be served upon the defendant, even though he appear in the case. It is urged that this was not an action upon contract for the recovery of money only, within the meaning of the statute. It was clearly an action upon contract; it was to recover for the value of medical services and medicines. The complaint alleges that the services were rendered and the medicines furnished at the request of the defendant. Upon this allegation there is clearly an implied contract on the part of the defendant to pay the plaintiff what such services and medicines were reasonably worth. It is equally clear that it was an action for the recovery of money only. The plaintiff asks judgment for money, and money only. The plaintiff alleges that the services and medicines were worth $225, and swears to that, with the other allegations. If the defendant desires to controvert the amount of the plaintiff’s claim in an action of this kind, he must do so by answer; and if he does not, he admits the justice of the amount of the claim, as well as the other facts set out in the complaint. Gorman v. Ball, 18 Wis., 24-27.
But if the defendant were entitled to notice of the application for judgment, the want of such notice would not render the judgment void. Morrison v. Austin and Lindauer v. Clifford, supra; Gorman v. Ball, 18 Wis., 24; Ætna Ins. Co. v. McCormick, 20 Wis., 265; Bonnell v. Gray, 36 Wis., 574; Salter v. Hilgen, 40 Wis., 363.
Admitting that the rule was in force, and that the demand of the defendant for a bill of items of the plaintiff’s account
It is conceded that if the judgment had been entered in term-time on application to the court, such judgment would not have been void, although entered j>ending an order staying proceedings on the part of the plaintiff; but it is urged that when so entered out of term by the clerk, it is void. We think no distinction of that kind can be made between judgments entered on application to the court, and those made on application to the clerk; in both cases the judgments, when entered, are the judgments of the court. It may be a fiction that the court enters the judgment when entered by the clerk in vacation, but it is that fiction alone which gives validity to such judgments. Wells v. Morton, 10 Wis., 468; Gorman v. Ball, 18 Wis., 24. In the last case, the court, in substance, held that the judgment entered by the clerk must not only be treated as the judgment of the court, but must be held to have the same effect as though entered by the court in term-time. This rule as to the effect of a judgment entered by the clerk can work no harm to litigants, under the rule of this court which permits any person, aggrieved by any irregularities in the entry of such judgments, to have the same vacated upon motion made at any time before the expiration of the next term of the. court after the entry thereof.
By the Oov/rt, — The order of the circuit court is reversed.