11 Wis. 146 | Wis. | 1860
By the Court,
The judgment, for want of an answer, in this case, seems to have been regularly entered.
He presented a sworn answer, but no affidavit of merits. His counsel concedes that the rule is established in cases at law, that an affidavit of merits is required to sustain such an application. But he contends that this doctrine does not apply to equity cases, and that a sworn answer, setting up a defence, is sufficient, as it was by the practice before the code.
But we do not think any such distinction in matters of practice should be retained. It was undoubtedly the intention of the legislature, in adopting the code, to abolish all distinction between legal and equitable actions, as far as was consistent with the inherent differences between the natures of the two kinds of remedy, and with the constitutional powers of the courts in administering them. With these limitations, it was the intent to establish a uniform system of practice, applicable to all actions. And the question here presented is a mere question of practice.
The authorities have established the rule, that on such an application, an affidavit of merits should be filed, and that a sworn answer does not supply its absence. The reason for this, given in Jones vs. Russell, 3 How. Pr., 324, is, that “a defendant may swear to the truth of his answer, without believing that he has a defence on the merits.” And it is obvi-vious that this is so. A party may be able to swear to a state of facts, in his answer, which amounts to a defense, yet know at the same time that the plaintiff would be able to avoid them entirely by proof of other facts, of which his answer would make no mention. And it is very plain, that the reason for the rule is precisely the same, whether the case
And we think the answer presented in this case furnishes some reason in favor of our conclusion. The denial of the execution of the mortgage, and the indebtedness thereon, is so framed as to justify the suspicion that it is based upon some supposed error in its description, in the complaint; and if so, that certainly would afford no ground for opening the judgment.
And it is not entirely clear that the allegations in regard to the sale of stock amount to such a fraud as would avoid the contract. The representations complained of, seem to be little if anything more than a statement that the stock was of greater value than it really was. And representations as to value, where there was no representation as to any material fact concerning the character of the property, have not generally been held to constitute such a fraud as would avoid the contract, even though the value was greatly exaggerated. It is true it states that the plaintiff, at the time of the sale of the stock, represented that the Madison and Watertown R. R. Co. “ was in a solvent condition.” But this might have been true, and still the stock have been worthless. The value of the stock of a company depends upon the value of its property over and above its debts. It is very questionable, therefore, whether there is. any such fraud alleged here, as courts could relieve against, and whether it is not rather a case where the maxim, caveat emptor, applies.
But upon these points we do not of course decide as though they were essential to the determination of the case. We simply refer to the character of the answer, as not being
The order is affirmed, with costs.