McIndoe v. Hazelton

19 Wis. 567 | Wis. | 1865

By the Court,

DIXON, O. J.

I think the objection to the judgment upon confession is without any foundation either at law or in equity. The defect was certainly cured by the statute of amendments before the code. R. S. 1849, ch. 100, sec. 7 and subd. 10. And by the next section it would have been the duty of the court below, and of this court-upon error, to have granted an amendment. The record itself supplies the means. The full names of the judgment debtors appear by the warrant, which by statute was to be, and was, filed with the clerk. B. S. 1849, ch. 102, sec. 13. Under the English statutes from which ours was copied, only with greater liberality of amendment, the practice has always been to amend where there is anything in the record to amend by. Mr. Tidd lays down the rule, in compliance with which he says, “ it has been determined that the original writ, or bill, is amendable by the instructions given to the officer; the declaration by the bill; the pleadings, subsequent to the declaration, by the paper-book, or draft under counsel’s hand; the nisi prius roll by the plea roll; the verdict, whether general or special, by the plea •roll, memory, or notes of the judge, or notes of the associate, or clerk of assize; and if special, by the notes of counsel, or even by an affidavit of what was proved on the trial; the judgment by the verdict; and the writ of execution by the judgment, or by the award of it, on the roll, or by former process.” 1 Tidd’s Prac., 713. If the defect was cured or amendable before the code, I think it is now. I think that everything which was accomplished by the old statute, with all its details, is now effected by two sections of the present revision. R. S. 1858, ch. 125, secs. 37, 40. Under the latter, it seems to me, the defect must be disregarded ; but if not, then the court undoubtedly must amend under the former.

But if I am wrong in this, and the omission is not cured, still it is but error, and the errors have been released.

A more conclusive answer, however, in this case is, that the plaintiff has an adequate remedy by motion in the action in which the judgment was rendered, to set it aside, and that a court of equity will not entertain the proceeding. It has frequently been held that courts of law exercise an equitable supervision over judgments entered upon warrants of attorney, and will, upon motion, stay, modify or vacate them, and award issues for the trial of facts, as the ends of justice may require. Van Steenwyck v. Sackett, 17 Wis., 657. And where the objection arises upon the face of the record, this is the only remedy. But when it is founded upon facts not appearing by the record, and which must be established by parol or other extrinsic evidence, then a suit in equity may be maintained. Such was the case of Lee v. Peckham, 17 Wis., 383, referred to by counsel for respondent.

Another and most conclusive answer to this action, if it be necessary to multiply them, is that the plaintiff shows no equity. Courts of equity will 'not listen to applications to correct mere errors of law, unconnected with the substantial rights of the party. This principle has been often acted upon by this court. Ableman v. Roth, 12 Wis., 90, 91, 92 ; Stokes v. Knarr, 11 Wis., 389 ; Warden v. Sup. Fond du Lac Co., 14 Wis., 618 ; Kellogg v. Oshkosh, id., 624; Miltimore v. Rock Co., 15 Wis., 9 ; Bond v. Kenosha, 17 Wis., 284.

The judgment of the circuit court must be reversed, and the cause remanded with directions that it be dismissed.