Lindauer v. Clifford

44 Wis. 597 | Wis. | 1878

Cole, J.

This action upon a promissory note was commenced on the 11th of January, 1878, by service of summons and verified complaint, by leaving copies thereof with defendant’s wife at bis place of abode, the defendant not being found. On the 21st day of the same month, the defendant entered a general appearance in the action by attorney. On the 4th of February following, one of the attorneys for the plaintiffs made and filed the usual affidavit, that more than twenty days had elapsed since service of the summons and complaint, and that no answer or demurrer had been served by defendant; and thereupon the clerk, in vacation, entered judgment in favor of the plaintiffs for the amount due on the note. No notice of application for judgment was given to defendant’s attorney. It is now objected that the clerk had no authority to enter the judgment under the circumstances. This objection must be overruled. Subd. 1, § 32, ch. 132, Tay. Stats., authorizes the clerk to enter judgmentin an action arising upon contract, for the recovery of money only, where there has been a personal service of summons. The voluntary appearance of the defendant is expressly made, by statute, equivalent to a personal service upon him (§ 21, ch. 124, Tay. Stats.), and gave the clerk full authority to enter judgment under the above provision. This power of the clerk to enter judgment on proof of personal service is too well settled to be called in question.

Again, it is said that no notice of the application for judgment was given the defendant’s attorney. As the complaint was verified, none was necessary. Trumbull v. Peck, 17 Wis., 265; Bonnell v. Gray, 36 id., 574. “When the complaint is not sworn to, then there is an assessment of damages by the clerk, notice of which is proper. But in Bonnell v. Gray it was held that an assessment without notice in such a case was but a formal irregularity, which, of itself, would not operate to reverse the judgment.

By the Court. — The judgment of the circuit court is affirmed.

ByaN, O. J., took no part.