Comstock v. Boyle

• Decision Date: 18 February 1908
• Citation: 134 Wis. 613,114 N.W. 1110
• Parties: COMSTOCK v. BOYLE ET AL.
• Court: Wisconsin Supreme Court

134 Wis. 613

114 N.W. 1110

COMSTOCK

v.BOYLE ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by E. G. Comstock against John T. Bóyle and others. From an adverse judgment and order, plaintiff appeals. Order affirmed, judgment reversed, and cause remanded for new trial.

Ejectment to recover a parcel of land in the city of Fond du Lac. The answer was a general denial. The case was on the calendar of the February, 1907, term of the circuit court for Fond du Lac county, and was reached February 13, 1907, on which day the plaintiff not appearing, the court received testimony upon the merits, and thereafter made findings of fact, to the effect that the legal title to the land in question was in respondents, and that appellant's title was based upon tax deeds for taxes levied on the land at a time when it was owned by the state, and not subject to taxation, and further found as conclusions of law that appellant's tax deeds were void, and that he acquired no claim or title whatsoever thereby, and directed judgment to be entered in accordance with the findings. These findings were served on plaintiff's attorneys March 9th and filed March 13th following, being still of the February term. The clerk did not, however, enter the judgment as ordered, and on March 19th the appellant served notice of motion to set aside the findings, on the ground that the court had no jurisdiction to try the case in the absence of the plaintiff. Two other grounds were alleged in the motion papers, but, as they were subsequently waived, it is unnecessary to refer to them. The motion was made returnable on the first day of the May term of said court. On the same day that the motion papers were served the appellant obtained from a court commissioner an order purporting to stay all further proceedings in the action until the hearing and determination of the motion. Upon the hearing of the motion, the court denied the same, and further ordered the clerk to sign and enter a judgment in accordance with the findings (which had been presented to him for signature March 14th, 1907) as of the last named date nunc pro tunc. The plaintiff appeals both from this order and from the judgment.Roemer & Aarons and J. G. Hardgrove (Edward S. Bragg, of counsel), for appellant.

F. L. Gilbert, Atty. Gen., and Russell Jackson, Deputy Atty. Gen., for respondents.

WINSLOW, C. J. (after stating the facts as above).

It was conceded by respondents that the judgment was erroneous, and must be reversed because the answer contained neither affirmative defense nor counterclaim, but only a general denial, and in such case the proper judgment, if plaintiff fails to prove title, is a judgment of nonsuit. Weld v. Johnson Mfg. Co., 86 Wis. 549, 57 N. W. 378;Zander v. Brewing Co., 89 Wis. 164, 61 N. W. 763;Keator v. Glaspie, 44 Minn. 448, 47 N. W. 52.

But the appellant makes a much broader claim, to the effect that, when he failed to appear at the trial, he thereby deprived the court of all jurisdiction to render any judgment except a judgment of nonsuit, and therefore that the judgment actually rendered was not only erroneous, but void. From this premise he argues that the trial court should have set aside the findings, even though the term had passed at which the action was tried and the judgment ordered. We are entirely unable to agree with this contention. Jurisdiction of actions of ejectment has been given to the circuit courts by the statute. Const. Wis. art. 7, § 8; Wis. St. 1898, §§ 2420, 3073 et seq. This is jurisdiction of the subject-matter. When the plaintiff properly commences such an action in the proper court, and serves his summons on the defendant jurisdiction of the parties is obtained, and thus complete jurisdiction of both the subject-matter and the parties is acquired by the court, and the contentions of the parties may be heard and decided. Absence of a party from the trial cannot deprive the court of jurisdiction to proceed, unless, indeed, there be some statutory provision to that effect. Such absence may affect the nature of the judgment, which should properly be rendered, but, if the court renders a wrong judgment, such action is an error only. It is not an act without jurisdiction. Having jurisdiction of both the subject-matter and the parties, the court has jurisdiction to render, not only a right judgment, but an erroneous judgment as well. The logic of the appellant's argument leads inevitably to the conclusion that whenever a court errs it acts without jurisdiction--a conclusion which, of course, it is impossible to sustain. State ex rel. v. Circuit Court, 98 Wis. 143, 73 N. W. 788. If the judgment in question was in fact rendered during the February term, the court could not against...