40 Wis. 386 | Wis. | 1876
Tbe motion in tbis case was founded upon irregularities in entering ‘up tbe judgment; and is therefore not an appeal to tbe discretion of tbe court, in which a verified answer disclosing merits should be served with tbe motion papers, as held in Levy v. Goldberg, presently decided [ante, p. 308]. It would indeed be more satisfactory, in cases like this? if tbe motion were founded upon a verified answer, and not on a mere affidavit of tbe defendant. But when tbe motion goes upon irregularity, we do not feel at liberty to require a verified answer as a condition of relief.
It is true that it has been held that tbe supervision of cciurts, on motion, over judgments entered upon warrants of attorney, is of an equitable character; and that tbe burden is on tbe defendant to show some wrong or injustice in tbe judgment. That rule appears to rest on tbe release of errors usually found in warrants of attorney. Van Steenwyck v. Sackett, 17 Wis., 645. Here there is no release of errors.
Aside, however, from release of errors, there are doubtless mere irregularities which should not have weight, under sec. 40, cb. 125, E. S., to disturb a judgment upon a warrant of attorney. But courts bave generally, and we thirtk rightly, looked closely into such judgments, to see that no substantial wrong has been done to tbe defendants, either in the judgments themselves or in tbe amounts for which they are entered up. And tbe equitable power which should not be invoked for immaterial irregularities, should surely be exercised against substantial injustice done by substantial irregularities.
When judgment is entered up upon warrant of attorney,
"We are aware tbat tbe affidavit in Blaikie v. Griswold, 10 Wis., 293, is open to tbe same objection, overlooked by tbe court in tbat case; the court considering tbe affidavit to be substantially in conformity to tbe statute. But there objection was specially made to tbe affidavit’s not stating tbat it was made on behalf of tbe plaintiff’. Tbe attention of tbe court was called to tbat point only, and tbe substantial defect of tbe affidavit was overlooked. And so far as tbat case may be in conflict with this, it must be considered overruled.
Tbe record before us fully justifies our present view. Tbe attorney probably meant no more in bis affidavit than tbat tbe whole amount appeared to be due on the face of tbe paper itself. And tbe appellant’s'affidavit, in support of tbe motion, showed a payment of a large proportion of tbe amount before tbe attorney’s affidavit was made. Some criticism was made upon tbe manner in which tbe payment is stated in tbe appellant’s affidavit; btit there was no denial of it on tbe respondent’s part; and, for tbe purposes of tbe motion, it must be taken for true, like an uncontradicted statement upon information and belief.
Tbe judgment was therefore not only irregular, but was made to appear unjust and oppressive. And, as tbe motion appears to have been made in time, within tbe rule of Ætna Ins. Co. v. McCormick, 20 Wis., 265, it should have been
By the Court. — Tbe order of tbe court below is reversed.