Egan v. Sengfeil

• Decision Date: 31 January 1879
• Citation: 46 Wis. 703,1 N.W. 467
• Parties: CHARLES EGAN, APPELLANT, v. WILLIAM SENGFEIL, RESPONDENT.
• Court: Wisconsin Supreme Court

46 Wis. 703

1 N.W. 467

CHARLES EGAN, APPELLANT,

v.WILLIAM SENGFEIL, RESPONDENT.

Supreme Court of Wisconsin.

January Term, 1879.

Appeal from circuit court, Iowa County.

Briggs & Jenks, for appellant.

J. P. Smelker, for respondent.

TAYLOR, J.

--This is an action to recover on an account for medical services and medicines. The complaint was duly verified and served with the summons. Within twenty days after the service of the summons and complaint, the defendantgave notice of an appearance by his attorney, and demanded a bill of items of the plaintiff's account, but did not serve any answer or demurrer to the complaint, nor obtain any order staying proceedings on the part of the plaintiff. On the twenty-first day of September, 1877, and after the expiration of twenty days from the date of the service of the summons and complaint, but before the expiration of ten days after the demand for a bill of items, and without any notice to the attorney for the defendant, the plaintiff entered judgment before the clerk in vacation. At the next term of the court the defendant gave notice of a motion to set aside the judgment for irregularity. The irregularities specified in such motion were, that no copy of a bill of particulars had been served as required by the rules of the court, and that no notice was given of the assessment of damages by the clerk, as by law required. This motion was not brought to a hearing at said term, and no order was made continuing the hearing thereof to some future term. On the twenty-fourth day of August, 1878, the defendant's counsel gave notice that the motion to vacate the judgment herein, and the motion for a further bill of particulars pending in the action would be brought to argument at the special term of the court, to be held at the court house in Lancaster, on the tenth day of September, 1878. Upon this last notice an order was made by the court on the eighteenth day of September, 1878, vacating and setting aside the judgment, and granting the defendant leave to answer. To the making of this order the plaintiff's counsel duly excepted, and after the entry of said order, appealed therefrom to this court.

The only question involved in this appeal is, whether the court had power to set aside this judgment after the expiration of the next term of the court after the entry thereof.

For the purpose of this appeal the case must be treated as though the motion to vacate the same was originally made on the twenty-fourth day of August, 1878, as the former motion had not been heard at the October term, 1877, and no continuance of such hearing had been made by the court, that motion fell with the adjournment of the October term of said court. We do not intend to decide that the court would have had the power to continue such motion to a subsequent term, and then make an order vacating such judgment; it is sufficient for the decision of this case, that no such continuance was in fact made. The motion in this case was clearly not a motion made under the provisions of § 38, ch. 25, R. S. 1858, the granting of which would be in the discretion of the court, but was a motion based upon a legal right to have the judgment vacated because irregularly entered.

If the judgment was not void, it is unnecessary to cite the authorities which hold that the court has no power to vacate the same after the expiration of the term at which the same was entered, when entered in court, nor after the expiration of the next term after the entry thereof, when entered by the clerk of the court in vacation.

The learned counsel for the respondent does not controvert this rule, but insists that the judgment was void, and not merely irregular. If the judgment was void, the motion was in time; if irregular, merely, it was too late.

There are but three reasons urged upon the court by the learned counsel for the respondent for holding the judgment void. First, because the demand for a bill of items of the plaintiff's account, operated as a stay of proceedings on the part of the plaintiff, until such bill of items was delivered. Second, because the defendant having appeared in the action before the time to answer had expired, notice of the application for judgment should have been given to the attorneys for the defendant. Third, that there was not sufficient proof of personal service of the summons and complaint upon the defendant.

The third cause assigned, we do not think has any foundation in fact. From an examination of the affidavit of the person who served the summons and complaint, we are inclined to hold the same sufficiently shows that the person upon whom the same was served was known to the person who served the same, to be the person named as the defendant in the summons. The affidavit of service says, “that he personally served the within summons and complaint upon the within named defendant, William Sengfield, to him well known by etc.” But if it were not sufficient, the defendant appeared in the action by counsel before the time to answer had expired, and such appearance is by statute made equivalent to a personal service on him. Sec. 21, ch. 124, R. S. 1858. This court held in Lindauer v. Clifford, 44 Wis. 597, that such appearance in action before the time to plead had expired, gave the clerk jurisdiction to enter judgment upon default, in the same manner as though there had been, in fact, a personal service, and although this latter decision is in apparent conflict with the decisions in Moyer v. Cook, 12 Wis. 335;Morrison v. Austin, 14 Wis. 601;Northrup v. Shepard, 20 Wis. 220. We are disposed to adhere to the decision in Lindauer v. Clifford, supra, as being in accord with both the spirit and reason of the law.

In the cases above cited there was no appearance by the defendant before the entry of the judgment except in the case of Northrup v. Shepard, and in that case it does not appear that the attention of the court was called to the provisions of the statute defining the effect to be given to a personal appearance by a defendant. The law gives power to the clerk to enter judgment, in actions arising upon contract for the recovery of money only, upon proof of personal service of the summons and complaint upon the defendant, and that no answer has been received. It provides, substantially, that the defendant shall have notice of the claim made by the plaintiff against him, and gives him time to make answer, and when he declines to make any answer, authorizes judgment as a matter of course, in favor of the plaintiff. The voluntary appearance of the defendant after a service, either personally, or by copy, is the best of evidence that he has notice of the action commenced against him, and there is, therefore, no necessity thereafter of making any formal proof of the service of the process or complaint on him. But this court held in Morrison v. Austin, and Northrup v. Shepard, that in case there was in fact a service by copy, or a personal appearance of the defendant, before the entry of judgment by the clerk, such judgment was not void, as such service or appearance gave the court jurisdiction of the person...