Mitchell v. Rolison

52 Wis. 155 | Wis. | 1881

Cassoday, J.

There is no dispute but that the court obtained jurisdiction of the defendant Rolison, who brings this appeal, by the service of the summons and complaint, as early as December 8, 1879, some five months prior to the entry of the judgment. There is no pretense that Rolison ever answered, demurred or appeared in the case. There is no pretense that he has any defense, or shadow of defense. There is no pretense that his default was by any inadvertence or mistake. He does not seek relief under the statute, but demands, as a matter of strict right, six months after the entry of judgment, and at a subsequent term, that it shall be wholly vacated and set aside, because, by some inadvertence on the part of the plaintiff’s attorneys, there was a failure to file an affidavit of the fact, which Kolison well knew, that he had not answered, demurred or appeared in the case. The fact is admitted, and he only complains because proof of it was not filed. He had apparently no solicitude on the subject until informed of the lack of proof just before making the motion, by one wh’o had acted as attorney for another party in the case. His solicitude to take action then might cause Relay, but could not be expected to result in any substantial benefit. Even.had judgment been entered before his time for answering had expired, and thus deprived him of a substantial right, yet a motion at a subsequent term to vacate the judgment therefor would necessarily have been denied, especially if not accompanied by verified answer or affidavit of merits. Salter v. Hilgen, 40 Wis., 363, and the cases there cited; Pier v. Amory, id., 571. For a much stronger reason was the motion denied in the present case. Here the judgment was on application to the court under the second subdivision of section 2891, R. S., which provides that “ the plaintiff may, upon like proof, apply to the court for judgment according to the demand of the complaint.” This court, in construing that clause, per Lyon, J., said, in Reed v. Catlin, 49 Wis., 690: “The statute does not require an affidavit, and under the decisions of this court the defective affidavits are valid as oaths, and competent proof of the facts stated in them. Moreover, both judgments recite that no answer, demurrer or notice of appearance had been served by the appellant. In the absence of the affidavits, probably the presumption would be that the court found the fact of such default on other legal and sufficient proof not preserved in the-record.” Then, after stating the reason why proof must not only be made but filed with the clerk, under the first subdivision, because he “is not a judicial officer,” and that “ there is no presumption that it was presented to him,” he said: “We do not think subdivision 2 requires that such proofs be filed. There is no necessity that they should be filed, because they are made in court, and their sufficiency is determined by the court in the first instance. These observations do not apply to proof of service of process. That must be in writing in all cases, and is, of course, an essential part of the record. "We are speaking of the proof of default alone.” Page 691. These observations are strictly applicable to the alleged defect in the record by reason of the omission of filing an affidavit of default, and we see no reason for changing our views of the construction of that subdivision of the section as there expressed;

Much that has been said is equally applicable to the omission to file with the clerk proof of the filing of the notice of lis pendens in the register’s office. The moving papers concede that the notice of lis pendens was in fact filed December 12, 1879. The only imperfection suggested in the notice is, that it does not state that the city of Fond dn Lac is in the county of Fond du Lac and state of "Wisconsin. But, as intimated on the argument, the court was bound to take judicial notice of that fact. The only defect in the record complained of in respect to the notice of lis pendens is, that proof of filing in the register’s office was not filed with the clerk until June 5, 1881, being several days after the entry of judgment. But, as stated, the judgment recites that due proof of such filing had been made and filed. The attempt is to falsify this particular recital by affidavits, and on motion of a defendant confessedly in default and without merits. In Manning v. McClurg, 14 Wis., 350, the question here presented was considered by this court under a statute substantially like section 3187, R. S. It was there said “ that the proofs should be .governed by the rules of law applicable to written or documentary evidence in general;” that the “original notice, with proof of its having been filed,” or “ a copy certified,” was sufficient. After showing that our rules of practice do not prescribe the manner in which the proof of filing is to be made as in New York, Judge Dixon said: “But, without a rule, it is manifest that the evidence cannot appear unless the defendant is present to object, and cause his exceptions to be regularly, made a part of the record. In the absence of exceptions showing what the proof was, it must be taken to have been regular and sufficient; for we cannot presume that the court would have acted upon it or rendered the judgment unless it was so. Such is the position of this case. The affidavit forms no part of the record, and cannot be noticed. The judgment recites that notice of the pendency of the action was duly filed in the office of the proper register, and, from all that appeal’s, it cannot be said that the court did not reject the affidavit, and require further proof of the fact. This recital cannot be impeached, except by matter of 'record showing that it is incorrect. Still, if it appeared that the affidavit was the only evidence, it is doubtful whether the judgment would be considered irregular. It is but secondary evidence, which, under some circumstances, may be received, and which, if not objected to, will not in general constitute good ground of error." Page 353.

If such is the rule of practice in a case where the appeal is directly from the judgment, it is much more conclusively so in a ease like this, where the judgment not only recites the filing of the notice in the register’s office, but also the proof of the fact on the rendition of the judgment, and where the record is silent as to what the proof was, and where there is no bill of exceptions making the proofs presented in court, or the absence of them, a part of the record, and an attempt is made to impeach the recital as to proof by affidavits dehors the record, and when no affidavits on the question could have been properly admitted in evidence against objection at the time of the application for the judgment. In Catlin v. Pedrick, 17 Wis., 88, the absence of such proof was made to appear by bill of exceptions. In Webb v. Meloy, 32 Wis., 319, it was held that “in a mortgage foreclosure, where the record is silent on the subject, it must be presumed in favor of the judgment that notice of Us pendens was duly filed.” In Sage v. McLaughlin, 34 Wis., 550, it was held that “ in foreclosure the filing of lis pendens need not be proven at the trial, but may be made to appear to tbe satisfaction of the court at any time before judgment; and on appeal it will be presumed in favor of the judgment (nothing to the contrary appearing in the record), that the court had before it proof of such filing.” These cases leave no room for further discussion, and must dispose of this appeal.

By the Oov/rt.— The order of the cii’cuit court is affirmed.