Gilbert-Arnold Land Co. v. O'Hare, 93 Wis. 194

Gilbert-Arnold Land Co. v. O'Hare

93 Wis. 194 | Wis. | 1896

Maeshall, J.

The settled rule is that, if a party desires to take advantage of want of service of process sufficient to give the court jurisdiction of his person, by moving to set aside the proceedings on that ground, he must appear specially for that purpose and keep put of court for all others. Alderson v. White, 32 Wis. 308. If a motion be made to set. *198aside a judgment on a ground inconsistent with the claim that it is void for want of jurisdiction of the person, as, for instance, for irregularity in - entering the judgment, or because costs are excessive, or not warranted by the pleadings, or because of some fact or facts constituting a defense, as is said in Alderson v. White, supra, in effect, such motion carries with it all objections to the jurisdiction of the court growing out of defective service or want of service of process on the persons of the defendants making the motion. It constitutes a submission on their part to the jurisdiction of the court, because the relief granted would be inconsistent [with any other reasonable hypothesis. The decisions of this court on the subject are numerous; the most recent being Kingsley v. G. N. R. Co. 91 Wis. 380.

In this case the defendants moved the court to set aside the judgment because the costs were excessive; also, because no affirmative relief was asked against appellants; also, because the action was prosecuted under a champertous agreement. Each of these grounds for relief was consistent only with the fact of jurisdiction, and therefore clearly implied its existence, and effectually waived any defect in, or want of service of, process, even if appellants were not estopped from raising that question; and we think that they were, by knowingly permitting the case to proceed and be conducted in their behalf by the city attorney, which fact sufficiently appears bjT the findings of the referee and the papers contained in the record.

Jurisdiction of the person and the subject matter of the action being established, appellants could only proceed to be relieved from such judgment by motion to the trial court, ■ within one year, under sec. 2832, B. S., for relief on the ground of mistake, inadvertence, surprise, or excusable neglect ; or by motion, during the same term at which the judgment was entered, to set it aside for errors in the proceedings prior to or in its rendition; or by appeal to this court *199on exceptions contained in the record, or without exceptions where unnecessary to present the questions relied upon. None of these methods was resorted to. A motion was made, after the lapse of the term at which the' judgment was rendered, invoking the general jurisdiction of the court to set it aside as void because the court had no jurisdiction to enter it. The court having jurisdiction of the person and the subject matter, none of the errors complained of, if under -any circumstances they could be considered errors in fact, entitled appellants to relief on such a motion. They did not •go to the jurisdiction of the court in any sense; hence, however erroneous the judgment may be, it is not void for the errors alleged. A judgment rendered in disregard of the ■statute, where the court has jurisdiction of the parties and the subject matter, though reversible on appeal or subject to be set aside on proper motion at the same term, is not open to a motion to vacate the same as void. Monroe v. Ft. Howard, 50 Wis. 228. So, in case of a judgment by default of a character not authorized by the complaint (Wood v. Blythe, 46 Wis. 650), or because there was no evidence introduced, where evidence was necessary (Foster v. Bowman, 55 Iowa, 238), or because the judgment is merely erroneous for any reason, except because not entered in conformity to ■the judgment actually ordered or pronounced, the court having jurisdiction of the subject matter and of the parties, is yet valid (Walker v. Rogan, 1 Wis. 597; Durning v. Burkhardt, 34 Wis. 589; Fornette v. Carmichael, 38 Wis. 236), and the ■error must be corrected, if at all, by motion to the court in which the judgment was rendered, before the expiration of the term (Fornette v. Carmichael, 38 Wis. 236; Challoner v. Howard, 41 Wis. 355), or by appeal, and not by motion to ■set aside the judgment after the term as void.

Though, on account of the foregoing conclusion, it is unnecessary to consider any other question raised and discussed in the briefs of counsel, we will say, in respect to the charge *200of champerty, that a mere implied agreement or understanding, under the circumstances here disclosed, that in some way the attorney conducting the case shall save his client harmless from all costs and expenses of the litigation, and have the judgment for costs recovered, if any, the action being on behalf of all the taxpayers, of which such attorney is-one, comes far short of a champertous agreement. Allard v. Lamirande, 29 Wis. 502. Such implied understanding is-entirely consistent with the theory that such attorney, representing the taxpayers, will see that all interested parties contribute a sufficient amount to relieve the plaintiff from any pecuniary burden of the litigation. The attorney being a taxpayer and, as such, interested as a party, is sufficient of itself to relieve him of the charge of champerty. The rule is that an agreement to pay, or to contribute to pay,, the expenses of litigation in which one is interested by reason-of relationship to the party, or by reason of direct interest in the* question at issue, is not champertous. Williams v. Fowle, 132 Mass. 385, 389; Thompson v. Marshall, 36 Ala. 504; Barker v. Barker, 14 Wis. 142; Martin v. Veeder, 20 Wis. 466,-cited by counsel for respondent; also, Davies v. Stowell, 18 Wis. 334, where the question, was directly decided by the court.

It follows from the foregoing that the order of the superior court should be affirmed.

By the Court.— The order of the superior court is affirmed-