Pirie v. Hughes

43 Wis. 531 | Wis. | 1878

Lyon, J.

The affidavit of the plaintiffs’ agent, annexed to the complaint in the proceedings which resulted in the judgment upon the note, is defective, because the agent’s means of knowing the fact to which he deposed are not stated therein. McCabe v. Sumner, 40 Wis., 386. This omission, however, is not a defect reaching the jurisdiction and rendering the judgment void, but is a mere irregularity. A similar omission was so regarded and dealt with in the case just cited. The defect being only an irregularity, it is not sufficient ground for vacating the judgment, unless the judgment is unjust or inequitable. Such is the statutory rule (R. S., ch. 125, sec. 40), fully recognized in McCabe v. Sumner, and applied in a multitude of cases in this court, some of which are cited in Bonnell v. Gray, 36 Wis., 574. And because the power to vacate a judgment by confession is an equitable power, and, whether exercised by courts of law or equity, is always exercised on equitable principles (Brown v. Parker, 38 Wis., 21), such is doubtless the rule of this case, irrespective of the statute. And more especially is the rule applicable here, because the warrant of attorney contains the usual clause for a release of errors, which was wanting in McCabe v. Summer, supra, and the effect of which clause is there stated.

Is the judgment unjust or inequitable? It is not so unless the motion papers show that the warrant of attorney was fraudulently obtained, or unless the judgment is too large. The affidavits and letters used on the hearing of the motion to vacate the judgment have been carefully examined. They are too voluminous to insert in the report of the case. It must suffice to say that, after due consideration of them, we are entirely satisfied that no fraud was practiced upon the defend-anta, but that they knew, when they signed the note, that it contained a warrant of attorney to confess judgment upon it.If they were ignorant of its legal effect, that is their misfortune, but is not a ground for relief. Ignorantia juris non excusat. It seems incredible, however, that the defendants, being merchants, should be ignorant of the nature of a security in universal use by bankers and business men.

"We are also satisfied that the judgment is for the sum actually due on the note. The affidavit of Mr. Sweet to that effect is strongly corroborated by the letters of the defendants. Indeed, it was not claimed on the argument of the appeal that the judgment was too large.

We conclude, therefore, that the judgment is not unjust or inequitable, and should not have been vacated.

It may also be remarked that it appeared on the hearing of the motion that Mr. Sweet had personal knowledge of the amount due on the note when he caused the judgment to be entered, and hence was competent to make the affidavit required by the statute to be annexed to the complaint. This fact is entitled to some weight in determining whether the judgment shall stand.

Many questions of practice were discussed by counsel, but we have not found it necessary to determine them.

By the Court. — The order of .the circuit court refusing to vacate the order made by the judge at chambers, is reversed, and the cause remanded for further proceedings according to law.