Godfrey v. Wright

151 Wis. 372 | Wis. | 1912

Mabshall, J.

The order must be affirmed, not because a case was made of “mistake, inadvertence, surprise or excusable neglect” under sec. 2832, Stats. (1898), which counsel for appellant seems to think was required; but because the judgment was void for want of jurisdiction to render it.

No foundation was laid for a judgment for deficiency against Wright in favor of his codefendant. No such judgment was ordered in the original decree. That was a necessary condition precedent. No service of Laura W. Potter’s answer was made on Wright bringing him in for an adjudication of matters between them, as required by sec. 2656a, Stats. (1898). In mandatory language, such section provides that, where a defendant seeks affirmative relief against a co defendant, an answer in the nature of a cross-complaint must be served on the party against whom relief is asked. Without such service the court does not obtain jurisdiction of the .person for granting such relief nor of the subject in respect thereto. Though the court may have jurisdiction in the sense of power as to such subjects, it is as necessary to give notice to the codefendant, in the manner provided in the Code, that relief will be asked for, as for plaintiff to give notice to the principal defendant in order to render the court competent to give judgment against him in the former’s favor.

If a party to an action be not brought into court by proper notice, a judgment against him therein is void and may be set aside on motion at any time, or reversed on appeal, the former being the better practice. Sayles v. Davis, 20 Wis. 302. The rule as regards setting aside a judgment for mere error or irregularity does not militate against judicial power to expunge a void judgment from the record. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265. A judgment which is a nullity may be so expunged on motion at any time. Sackett v. Price Co. 130 Wis. 637, 641, 110 N. W. 821.

It is quite plain that the court in this case did not acquire jurisdiction of 'Wright for the purpose of granting any affirmative relief' against him in favor of Potter. In all such cases a judgment assuming to dispose of the rights of the parties, is a nullity. Falkner v. Guild, 10 Wis. 563. Such a judgment should not be confused with one affected by mere error or irregularity, which cannot be dealt with in the court committing it after the term or within some statutory period, nor with a judgment affected with jurisdictional error of a judicial nature, leaving it good until vacated on motion or some direct proceeding to that end. The jurisdictional defect here goes to the extent of want of power of the trial court to deal with the matter at all under the circumstances, rendering the result open to collateral attack as utterly void.

By the Gourt. — The order is affirmed.