162 Wis. 12 | Wis. | 1916
The following opinion was filed October 26, 1915:
It is the settled law of this state that a valid judgment cannot be set aside after the term at which it is entered, except under provisions of sec. 2832, Stats. And where relief is asked under this section, not only the motion but the order itself must be made within one year after the moving party has notice of the judgment. Whitney v. Karner, 44 Wis. 563; Edwards v. Janesville, 14 Wis. 26; Spafford v. Janesville, 15 Wis. 474; Flanders v. Sherman, 18 Wis. 575, 593; Ætna L. Ins. Co. v. McCormick, 20 Wis. 265; Hartshorn v. M. & St. P. R. Co. 23 Wis. 692; Scheer v. Keown, 34 Wis. 349; Quaw v. Lameraux, 36 Wis. 626; Knox v. Clifford, 41 Wis. 458; Hogan v. State, 36 Wis. 226; Black v. Hurlbut, 73 Wis. 126, 40 N. W. 673; Zinc C. Co. v. First Nat. Bank, 103 Wis. 125, 138, 79 N. W. 229; Challoner v. Howard, 41 Wis. 355.
In this latter case it is said that the rule does not militate against the power of a court to prevent the inequitable use of a judgment or to restrain the enforcement of a judgment obtained by fraud.
A judgment of the clerk entered in pursuance of an order of court made on the same day must be regarded as a judgment of the court in session, and a motion to set it aside for irregularity must be made at the same term. Pormann v. Frede, 72 Wis. 226, 39 N. W. 385.
The circuit court has no jurisdiction to review a judgment rendered at a former term, for the purpose of correcting errors in law or fact committed by the court in rendering it or
In substance sec. 2832, Stats., provides-that the court may in its discretion, at any time within one year after notice thereof, relieve any party from a judgment against him through his mistake, inadvertence, surprise, or excusable neglect and may supply any omission in any proceedings; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of law, the court may in like manner permit an amendment to such proceeding so as to make it conformable thereto.
Manifestly the appellant's motion was not made, and in any event was not maintainable, under see. 2832. The judgment was not entered because of any mistake, inadvertence, or neglect of the appellant. It was entered after a full trial on the merits and pursuant to an order of the court. She may have been surprised at the decision of the court on the facts before it, but this is a surpfise that falls to the lot of many litigants, and is not the kind of a surprise that the statute provides a remedy for. The remedy, if there be one, is to appeal, and often the surprise is only augmented by the final decision. We know of no'rule of law that would authorize a court to set aside a final judgment more than three years after it was entered simply because there was a long delay in entering it. Either party might have caused judgment to be entered promptly and have taken an appeal from such judgment. While respondent secured some relief, he obtained only a small part of what he asked, and the decision was at least a partial victory for the appellant. Aside from the question of laches, the appellant sought to have the judgment set aside for errors of fact and law alleged to have oc
After tbe lapse of tbe term at which- judgment is entered and tbe expiration of one year tbereafter, tbe circuit court may correct a mistake in tbe entry of tbé judgment so as to make it conform to tbe judgment actually pronounced by tbe court. It cannot modify or amend tbe judgment to make it conform to wbat tbe court ought to have adjudged or even intended to adjudge. Williams v. Hayes, 68 Wis. 248, 32 N. W. 44; Hoffman v. State, 88 Wis. 166, 174, 59 N. W. 588; Packard v. Kinzie Ave. H. Co. 105 Wis. 323, 325, 81 N. W. 488; Ætna L. Ins. Co. v. McCormick, 20 Wis. 265, 268; Will of Cole, 52 Wis. 591, 9 N. W. 664; State ex rel. Taylor v. Town Board, 69 Wis. 264, 34 N. W. 123; probably Wyman v. Buckstaff, 24 Wis. 477, 479, although tbe statement of facts does not show the length of'time that actually elapsed. The same is true of Durning v. Burkhardt, 34 Wis. 585, 588.
Tbe rule does not permit tbe setting aside of tbe judgment first entered and tbe entry of a new one, but only tbe correction of it. No power exists to set aside tbe whole judgment for tbe purpose of correcting a clerical error. Tbe power to amend does not include tbé power to wipe out. It follows that Judge WiluiaMS bad no power to set aside tbe 1911 judgment or to enter a new one in lieu thereof, and that tbe order setting aside tbe former judgment is a nullity and tbe judgment entered in 1914 was absolutely void. Speaking of the effect to be given to a void judgment Mr. Freeman says:
“A voi.d judgment is, in legal effect, no judgment. . By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. Tbe parties attempting to enforce it may be responsible as trespassers. Tbe purchaser at a sale by virtue of its authority finds himself without title and without redress' Tbe first and most material inquiry in relation to a judgment*18 or decree, then, is in reference to its validity. Eor if it be' null, no action upon tbe part of the plaintiff, no inaction upon the part of the defendant, no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered or in some other action:” 1 Freeman, Judgments, § 117.
And again: “A judgment pronounced by a tribunal having no authority to determine the matter in issue is necessarily and incurably void, and may be shown to be so in any collateral or other proceeding in which it is drawn in question.” 1 Freeman, Judgments, § 120.
The rule has been stated just as strongly by this court:
“If the court exceeded its jurisdiction of the subject matter, then the judgment is no protection whatever. It may be ignored altogether. Peck v. School Dist. 21 Wis. 516; Blodgett v. Hitt, 29 Wis. 169; Damp v. Dane, 29 Wis. 419; Mathie v. McIntosh, 40 Wis. 120; O'Malley v. Fricke, 104 Wis. 280, 80 N. W. 436; Harrigan v. Gilchrist, 121 Wis. 127, 228, 99 N. W. 909; Hughes v. Cuming, 165 N. Y. 91, 58 N. E. 794; Cooper v. Reynolds, 77 U. S. 308. The rule is elementary, that if the matter dealt with by the judgment in this case was entirely outside of the court’s jurisdiction, then, as áaid in the last case cited, the result was not merely erroneous and so, binding on all parties which the court had jurisdiction of, and their privies, till set aside in some of the ways appointed by law, not including collateral attack, but was a usurpation and, as said in Damp v. Dane, supra, the proceedings void in the broadest sense of the term.” Will of Rice, 150 Wis. 401, 440, 441, 136 N. W. 956, 137 N. W. 778.
The judgment and order appealed from being mere nullities, there is nothing to affirm or reverse.
Judge WilliaMS might have made an order correcting the
By the Court. — Appeal dismissed.
A motion for a rehearing was denied, with $25 costs, on J anuary 11, 1916.