Barrett v. Pepoon

• Decision Date: 05 March 1963
• Citation: 19 Wis.2d 360,120 N.W.2d 149
• Parties: Charles J. BARRETT, Respondent, v. Edward M. PEPOON, Appellant.
• Court: Wisconsin Supreme Court

Page 149

120 N.W.2d 149

19 Wis.2d 360

Charles J. BARRETT, Respondent, v. Edward M. PEPOON, Appellant.

Supreme Court of Wisconsin.

March 5, 1963.

Glassner, Clancy & Glassner, Milwaukee, for appellant.

Robertson, Hoebreckx & Davis, Milwaukee, for respondent, John G. Vergeront, Milwaukee, of counsel.

GORDON, Justice.

The complaint alleges the existence of a void judgment in favor of Mr. Pepoon. Paragraph three of the complaint recites the basis upon which the plaintiff Barrett contends that the judgment in favor of Pepoon is void.

Our scrutiny of the complaint convinces us that a cause of action is not alleged. In paragraph three of the complaint the plaintiff avers that the judgment was entered against Barrett 'without authority of law.' This is a conclusion of law which a demurrer does not admit. Reque v. Milwaukee & Suburban Transit Corp. (1959), 7 Wis.2d 111, 95 N.W.2d 752, 97 N.W.2d 182; Zache v. Town of West Bend (1954), 268 Wis. 291, 67 N.W.2d 301. Similarly, in Hoard v. Gilbert (1931), 205 Wis. 557, 561, 238 N.W. 371, 373, this court approvingly quoted the following:

"A pleading which depends on conclusions of law, without stating the facts on which they are based, is fatally defective. In other words, a conclusion of law cannot obviate the necessity of setting out essential facts."

The complaint also alleges that the judgment was entered 'without notice.' The mere absence of a notice of entry of judgment does not make it a void judgment. The notice of entry presupposes a judgment which has been entered or perfected pursuant to ch. 270, Stats. The office of a notice of entry of judgment is to toll the time for serving the bill of exceptions. Sec. 270.47, Stats. Jolitz v. Graff (1960), 12 Wis.2d 52, 106 N.W.2d 340.

Paragraph three of the complaint further alleges that 'said judgment is void for the reason the defendant Pepoon was not a party to the lawsuit in which judgment was entered in his favor.' In our opinion, the early portion of this quotation ('said judgment is void') is a conclusion of law, and the latter portion ('Pepoon was not a party to the lawsuit') is not a sufficient allegation of fact to demonstrate the invalidity of the judgment. In Handy v. Holland Furnace Co. (1960), 11 Wis.2d 151, 154, 105 N.W.2d 299, 301, we said:

'The basic requirement in pleading facts constituting a cause of action is that the complaint give to the other party notice of what is claimed.'

The allegation that Pepoon was not a party to the lawsuit does not in and of itself present the factual basis for the contention that the judgment is void. It must be noted that the previous portion of paragraph three of the complaint alleges that Pepoon 'caused to be entered against plaintiff a judgment * * *' This establishes that Pepoon had some stake in the proceedings; it tends to be inconcistent with the contention that he was not a party to the lawsuit.

A judgment of the circuit court is entitled to dignity. He who desires to attack such a judgment collaterally, as the plaintiff does here, must allege sufficient facts to show that the judgment may be void. If it is a...