53 Wis. 158 | Wis. | 1881
The point was much discussed on the argument, whether the assignment of the judgment would have the effect to transfer the right of action of the assignor against the constable for a false return. It is said by defendants’ counsel that such a cause of action sounds in tort, does not survive to the personal representative at common law, and is not assignable under the statute. Whether this position is sound we shall not decide. For the purposes of this case we assume that the right of J. S. Mabbett to bring an action against the constable for a false return was transferred to the plaintiff by the assignment of the judgment, and that the plaintiff can maintain this suit if his assignor could. But we do not think J. S. Mabbett himself could maintain the action upon the facts appearing in the record'. Of course the defendant constable was not a party to the proceedings in the
But, conceding that we are wrong in this view of the law, still we are clearly of the opinion, if the circuit court had the same power over the judgment in question as it has over its own judgments, that no case was made by the judgment debtor for setting it aside or interfering with the transcript. This court has frequently decided that the power to vacate a judgment by confession is an equitable one, and will be exercised on equitable principles (Pirie v. Hughes, 43 Wis., 531); and this case should, under the circumstances, stand upon the same ground. The judgment debtor did not claim that the judgment was unjust or inequitable for any reason. He merely insisted that the justice did not acquire jurisdiction of his person by the service of process which was made by the constable. In this he was mistaken-! The justice prima facie had jurisdiction by virtue of the return of the constable. The return’states that the summons was duly served upon the defendant by reading the same and giving him a copy, on the 25th day of November, 1876. . But it is insisted that this return is not conclusive in this action as to the manner of service (Carr v. Commercial Bank, 16 Wis., 51), but could be and was shown to be false in fact. We may assume the facts as to the manner of service of the summons to be as stated by Mr. Blatto in his affidavit- which was used on the motion to set aside the judgment, though in some material points he is contradicted by the testimony of the officer. Mr. Platto admits and states that on the 25th of November, 1876, there was delivered to and left writh him by the officer the paper which he describes as an “ exhibit.” That paper is a copy of a summons issued by the justice in the usual form, bearing date November 23d. The return day, as therein stated, is November 2, 1876. Now there are two objections taken by counsel to the service of this process. First, it is insisted that both’
These views would be fatal to a recovery in this action for a false return even were the suit brought by the judgment creditor, J. S. Mabbett, himself.
By the Court.— The j udgment of the county court is reversed, and a new trial ordered.