Frankfurth v. Anderson

• Citation: 20 N.W. 662,61 Wis. 107
• Parties: FRANKFURTH AND OTHERS v. ANDERSON. ANDERSON v. ANDERSON.
• Decision Date: 23 September 1884
• Court: United States State Supreme Court of Wisconsin

61 Wis. 107

20 N.W. 662

FRANKFURTH AND OTHERS

v.ANDERSON.

ANDERSON

v.ANDERSON.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from circuit court, Taylor county.

R. B. Salter, for respondents.

J. K. Parish, for appellant.

TAYLOR, J.

In each of the above-entitled cases there is an appeal from the order of the circuit court refusing to set aside the judgments entered therein against the appellant. The judgments were entered by the clerk of the court, upon the default of the defendant and without any appearance on his part.

The grounds upon which the appellant moved to set aside the judgments are the following-- First, that the complaint filed in the several actions does not state a cause of action; second, that the complaints were not properly verified, and the clerk entered judgment without taking any proof of the plaintiff's claims against the defendant. The record in each case recites that the defendant was duly personally served with the summons and complaint in the action more than 20 days before the judgments were entered. And this fact is not disputed, so that the court had jurisdiction of the person of the defendant as well as of the subject-matter. Whether the complaint set forth a cause of action, and whether the court had power to enter judgment upon the default of the defendant to answer upon the complaints imperfectly verified, (admitting that they were not properly verified,) were questions for judicial determination; and although they were in fact to be determined by the clerk, yet for all purposes of review they are to be deemed determined by the court. Wells v. Morton, 10 Wis. 473;Gorman v. Ball, 18 Wis. 24;Egan v. Sengpiel, 46 Wis. 703-710;S. C. 1 N. W. REP. 467. The judgments in the cases were not therefore void, although they may have been irregular. Jackson v Astor, 1 Pin. 137;Wanzer v. Howland, 10 Wis. 8;Falkner v. Guild,Id. 564; Tallman v. McCarty, 11 Wis. 401;Arnold v. Booth, 14 Wis. 180;Gale v. Best, 20 Wis. 44;Amory v. Amory, 26 Wis. 152;Pier v. Amory, 40 Wis. 571;Salter v. Hilgen, Id. 363. In Tallman v. McCarty, supra, this court says: “No order which a court is empowered to make under any circumstances in the course of a proceeding over which it has jurisdiction 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 case is, had the court or tribunal the power, under any circumstances, to make the order or perform the act. If this be answered in the affirmative then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose.” This is undoubtedly the rule of law applicable to all judicial proceedings; and treating the judgments entered in these cases as the judgments of the circuit court, as they must be treated, it is clear the judgments entered are not void, although they may have been irregularly entered.

The judgments not being void, the rule is well established in this court that the motion to set the same aside must be made at the first opportunity. Where an order or judgment is made in term time, the motion to set it...