Sackett v. Price County

130 Wis. 637 | Wis. | 1907

Kerwin, J.

1. From the record before us we are convinced that the clerk of the court was without authority to enter judgment in tbe action. The alleged judgment appearing upon tbe record was, therefore, not the judgment of the court. There is nothing to show that the court ever passed upon the issues involved in the action or directed tbe clerk to enter judgment. It appears that the clerk entered the alleged judgment under tbe mistaken apprehension that the findings bad been signed by the judge, and did not discover that they were not until after the record bad been made up. It also appears from tbe order of the court vacating tbe judgment, in which it is recited that the judgment was made and rendered (by mistake and inadvertence, that no judgment was ordered. So we cannot say from the record that the court ever passed upon tbe issues in the action or that-the court ordered judgment. The clerk, therefore, bad no authority to enter judgment. Sec. 2894, Stats. 1898; Stahl v. Gotzenberger, 45 Wis. 121; Wadsworth v. Willard, 22 Wis. 238. Sec. 2863, Stats. 1898, provides that “upon a trial of a question of fact by the court its decision shall be given in writing and filed with the clerk. . . .”

It is urged upon tbe part of appellant that the unsigned findings filed with the clerk'were a compliance with the statute. Whether a judgment would he set aside solely because the findings were not signed, in a case where it appeared without dispute that they had been made and filed by the judge and through inadvertence had not been signed, it is unnecessary to decide in this case. We think, however, that the statute clearly contemplates that the findings shall be signed. The practice of having findings signed by the judge seems to have been followed and recognized by the bench and bar as a necessary compliance with the statute. Duncan v. Duncan, 111 Wis. 75, 86 N. W. 562; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Fish Co. v. Young, 127 Wis. 149, 106 N. W. 795. It is easy to see that confusion and uncertainty might result from failure of the judge to sign his findings, since in many cases it might be difficult to determine whether the findings, unsigned and appearing in the record, were the findings of the court or those prepared by counsel, or whether findings had been, in fact, passed upon by the judge. In the case before us the court obviously determined that the clerk was not authorized to enter judgment, and we cannot say from the record that-he was not right in so finding. The clerk having no authority to enter the alleged judgment it was a nullity, and could be vacated and expunged from the record after as well as during the term at which it was entered. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265; 23 Cyc. 905, 923, 924. It is well established that a judgment entered by the clerk without authority may be vacated after the term at which it was entered. 1 Black, Judgments, § 328 and cases cited; 23 Cyc. 948.

2. The order vacating and setting aside the judgment being properly entered, it necessarily followed that the defendant was entitled to have the alleged findings stricken from the record as well as the alleged transcript and affidavits filed in the office of the county clerk withdrawn. It is insisted, however, that costs should not have been imposed on the motion to compel appellant to withdraw the transcript of the judgment docket filed with the county clerk and staying proceedings on the part of appellant. This transcript of judgment was filed after the motion to vacate the judgment had keen made. The obvious purpose of such filing by appellant was to proceed with the collection of the alleged judgment. The judgment being void, the motion and stay were proper, and no error was committed in allowing respondent costs of motion.

Upon the argument our attention was called to the fact that respondent had failed to serve his brief within the time prescribed by rule of this court, and we were asked to enforce the penalty. RTo reason appears why the penalty should not be imposed.

The orders appealed from will be affirmed, with costs against the appellant, less $25 penalty charged against respondent as provided in Rule 46. ,

By the Court. — It is so ordered.