40 Wis. 363 | Wis. | 1876
Tbe defendants were entitled to tbe whole of tbe day on which tbe judgment was rendered, for appearance and answer, and hence tbe judgment was premature. If tbe judgment was void for that reason, the motion to vacate it, no
Mr. MacNamara, in his very excellent treatise on Nullities and Irregularities, defines a nullity to be, “ such a defect as renders the proceedings in which it occurs totally null and void, of no avail or effect whatever, and incapable of being made so.;” while an irregularity, as distinguished from a nullity, “ consists either in omitting to do something that is necessary to the due and orderly conducting of ásuit, or doing it in an unseasonable time or improper manner.” (p. 4.) The learned author adds the following observations: “ It is very difficult to give a concise, and yet sufficiently comprehensive definition of a nullity. Its character will be best understood by the decided instances of it, and by a reference to the incidents which pertain to it. Perhaps, however, it may be defined as a proceeding that is taken without any foundation for it, or that is essentially defective, or that is expressly declared to be-a nullity by a statute.” It is also said that an irregularity maybe waived, while a nullity cannot; but the caution is added that wawer in the strict sense of the term is meant, and that the rule must not be carried so far “ as to suppose that at any period, or under any circumstances, this objection must of necessity be available.” (pp. 6-8.)
Notwithstanding general definitions, the courts have found it difficult to determine in many cases whether errors and omissions in the course of legal proceedings rendered the pro
The distinction between a nullity and an irregularity is thus stated by Dixon, G.J., in Tallman v. McCarty, 11 Wis., 401: “ No order which a court is empowered, under airy circumstances in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity merely because it was made improvidently, or in a manner not warranted by law or the previous state of the case, The only question in such a case is, Had the court or tribunal the power, under any cwev/mstances, to make the order or perform the.act? If this be answered in the affirmative, then its decision uj>on those cirewmstconees becomes final and conclusive, until reversed by a direct proceeding for that purpose. In the case before us, it was for the circuit court to determine in the first instance when and how the authority with which it was invested to direct a sale, should be exercised; and if in so doing it committed an error, no matter how egregious, whether in the construction of the statute or otherwise, still the order was valid until reversed on appeal. It was a mere error or irregularity, which could only be taken advantage of by appeal, but cannot be inquired into in this proceeding.” (p. 406.) We believe that the views of the court thus expressed by the learned chief justice are in entire harmony with the general doctrine on the subject as laid down by elementary writers, and as recognized and applied by the courts in numerous cases. It remains to apply the rules thus established to the present case.
The statute provides as follows: “ From the time of the service of a summons in a civil action, or the allowance of a provisional remedy, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings.” B. S., ch. 124, sec. 14. In this case the summons was properly served, and the court thereby obtained
Another rule stated by Mr. MacNamara seems to confirm the rule of Tallman v. McCarty, and the application thereof to this case. He says: “ And though a nullity cannot itself be rendered good, yet it seems that where the omission of a step altogether is a mere irregularity, if it be taken in such a manner as to be null, it is as no step, and the same as if it had been altogether omitted, and consequently renders the next step irregular and liable to waiver.” (p. 11.) In the proceedings before us there are, or should be, three distinct steps, to wit: 1. The service of the summons. 2. The adjudication that the defendants were in default; and 3. The final judgment. The first step was regular, and conferred upon the court jurisdiction of the parties and control of the subsequent proceedings; and the second was erroneously taken, and at the worst was a nullity. Under the last mentioned rule, the third step — the rendition of final judgment — was an irregularity merely, and not a nullity.
In further confirmation of the rule of Tallman v. McCarty, and its application here, we find it laid down in 2 Ohitty’s Archbold, 786, that “if any necessary proceeding on the part of the plaintiff be not had within the time limited for it, or be
In Ætna Ins. Co. v. McCormick, 20 Wis., 265, tbe rule under consideration was applied under circumstances very similar in principle to those of this case. A judgment had been entered on a five days’ notice of application therefor, when tbe law required an eight days’ notice. Tbe circuit court, at a subsequent term, set aside tbe judgment because of such defect of procedure. This court reversed the action of tbe circuit court on tbe ground that tbe motion to vacate tbe judgment came too late, and thereby necessarily held that tbe defective proceeding merely made tbe judgment irregular. See Freeman on Judgments, §§ 97, 98.
The case of Lampe v. Manning, 38 Wis., 673, does not, as was claimed in argument, assert a different doctrine. It was there held that a judgment rendered on a legal holiday is void; and tbe reason given is, that on that day tbe court bad no jurisdiction of tbe parties or cause. No such reason exists here.
A few observations upon tbe cases in California and Missouri, cited by tbe learned counsel for tbe defendants, must
From the best consideration we have been able to give the subject, we are impelled, both on principle and authority, to the conclusion that the premature rendition of the judgment in the present case was merely an irregularity. Ve express no opinion as to whether the judgment should be reversed or affirmed on an appeal therefrom, or on writ of error.
The motion to vacate the judgment not having been made in time, the order of the circuit court denying such motion must be affirmed.
By the Court. — Order affirmed..