Home Bank v. Becker

• Decision Date: 06 October 1970
• Docket Number: No. 130,130
• Citation: 48 Wis.2d 1,179 N.W.2d 855
• Parties: The HOME BANK, Plaintiff-Respondent, v. Frances K. BECKER, Defendant-Appellant, Alfred A. Ziegler, Recr. of Frances K. Becker, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 855

179 N.W.2d 855

48 Wis.2d 1

The HOME BANK, Plaintiff-Respondent, v. Frances K. BECKER, Defendant-Appellant Alfred A. Ziegler, Recr. of Frances K. Becker, Defendant-Respondent.

No. 130.

Supreme Court of Wisconsin.

Oct. 6, 1970.

[48 Wis.2d 3] This is an appeal from two orders of the county court of Milwaukee county; one entered January 27, 1969, denying the application of Frances K. Becker, appellant, to have set aside a cognovit judgment, a receivership, and a sale of real estate; and a second entered May 5, 1969, denying appellant's application for equitable relief restraining enforcement of the judgment on the grounds that it was unconscionable because of the unreasonableness of the attorney fees charged and allowed.

January 6, 1967, appellant gave a promissory note to The Home Bank, respondent. The note was in the amount of $23,000, with interest at the rate of 10 percent per annum, and payable on demand. The note further provided for the confession of judgment without process in the event of nonpayment or default, and included as part of the judgment 25 percent of the amount of the note as 'attorneys' fees and all costs of collection.' Appellant defaulted in payments on the note, and on August 23, 1967, respondent entered judgment against the appellant in the amount of $23,771.12, plus costs of $11, and attorneys' fees of $5,942.78.

On August 28, 1967, execution on the judgment was issued, which was served on the appellant on September 30, 1967. On October 3, 1967, the execution was returned unsatisfied by the sheriff of Milwaukee county. On November 24, 1967, respondent, by one of its attorneys, petitioned the county court of Milwaukee county for the appointment of a receiver under ch. 128 of the Wisconsin statutes, and on December 27, 1967, a receiver was appointed by the court and directed to post a bond in the amount of $500. The receiver thereafter took possession of appellant's property.

Two appraisers were appointed by the court to appraise the property owned by the appellant. A value of $45,000 was assigned to a parcel of unimproved land on Nagawicka Lake located in Waukesha county. On November 1, 1968, the receiver petitioned the court to approve a private sale of the Nagawicka Lake property. After a hearing on the petition, the court approved a sale of the property for $36,000. Additional facts will be set forth hereinafter.

William F. Scholl, Wauwatosa, for defendant-appellant.

Charne, Glassner, Tehan, Clancy & Taitelman, Milwaukee, for plaintiff-respondent.

Paul L. Moskowitz, Milwaukee, for defendant-respondent. CONNOR, T. HANSEN, Justice.

INVALIDITY OF JUDGMENT

On December 26, 1968, the appellant filed a motion with the trial court to have the cognovit judgment set aside because it was an invalid judgment. Counsel for appellant filed an affidavit in support of the motion stating the judgment was docketed August 23, 1967; that the court record contained no notice of entry of judgment; and among other things set forth:

'6. That, upon information and belief, the first legal notice of any kind that judgment had been taken against her was at the time the Sheriff attempted to serve said execution of judgment;'

and

'8. That, upon information and belief, no notice of entry of judgment was served on the defendant as required by statute.'

In opposition to the motion, on January 13, 1969, respondent filed with the court an affidavit of mailing, signed by Hazel L. Baack, which stated that on the 24th day of August, 1967, she mailed, properly enclosed in a postpaid envelope, a letter dated August 24, 1967, addressed to the defendant at her last known address notifying the defendant that judgment had been entered against her. The affidavit incorporated by reference a copy of the letter. The copy of the letter had the words 'VIA CERTIFIED MAIL' typed on it. No mention is made in the affidavit that the letter was mailed certified mail.

Subsec. (3) of sec. 270.69, Stats., was created by ch. 36 of the Laws of 1967, and became effective May 28, 1967, and provides as follows:

'Within 30 days, after a judgment is entered under sub. (2) the plaintiff shall, by certified mail, transmit notice of entry thereof to the judgment debtor at his last known address. Failure to transmit such notice shall invalidate the judgment.'

There is no requirement in that section that proof of service of notice of entry of judgment appear in the record. This court has in other contexts held that where service of notice is expressly required by statute but proof of such service is not required to appear in the record, failure of the court record to show that notice was served does not invalidate the judgment.

'* * * Where the record of a superior domestic court is silent upon the subject of the service of the process by which the court acquires jurisdiction of the defendant, it is presumed, in favor of the judgment, that lawful process was duly served. * * *' Sommermeyer v. Schwartz (1894), 89 Wis. 66, 70, 61 N.W. 311, 312.

'* * * The distinction between the fact of service, which is essential to jurisdiction, and proof of the fact of service, as the evidence of jurisdiction, has at times been lost sight of. If service of the summons in a case is, in fact, made on the defendants, that gives the court jurisdiction to render a valid judgment, so far as the service of process is concerned, though the evidence of record, constituting the proof of service, may fail in essential particulars to establish that such service was in fact made. * * *' Schmidt v. Stolowski (1905), 126 Wis. 55, 61, 105 N.W. 44, 47.

'In many legal proceedings in courts it is well settled that it is the fact of service which gives the court jurisdiction of the person and not the proof of service. If service was in fact made, proof thereof may in many cases be supplied later when necessary.' State ex rel. Stengl v. Cary (1907), 132 Wis. 501, 505, 112 N.W. 428, 429.

The court in these cases indicated that whether a summons was, in fact, served, as required by statute, was a factual question. Thus, in this case where there is no requirement that proof of service of notice of entry of judgment appear in the record whether or not the required notice was served is a question of fact.

We are of the opinion that the trial court improperly denied appellant's motion to set aside the judgment on the ground that it was invalid, in the belief that sec. 269.46, Stats., prevented it from invalidating the judgment since one year had elapsed since the entry of the judgment. Sec. 269.46 provides for relief from valid judgments on various grounds and has no application to void judgments. A void judgment can be set aside at any time.

'A judgment or order which is void may be expunged by a court at any time. Such right to expunge a void order or judgment is not limited by statutory requirements for reopening, appealing from, or modifying orders or judgments. * * *' State ex rel. Wall v. Sovinski (1940), 234 Wis. 336, 342, 291 N.W. 344, 346.

While the legislature in creating sec. 270.69(3), Stats., used the word 'invalid' and not 'void' in describing the effect on the judgment of failure to give the required notice, it could not have intended that a judgment would become a valid judgment, under all circumstances, if the defendant failed to move the court to vacate the judgment within one year of its entry. We do not interpret sec. 269.46 to mean that the mere lapse of one year would render a judgment valid to the extent that a court could not, under any circumstances, invalidate or set it aside. To do so would mean that a defendant who had no notice or lack of proper notice of the entry of judgment could not object to it after one year from its entry. The judgment is 'invalid' or 'void' in the sense that it is subject to being vacated at any time where the proper notice of entry has not been given.

The question then becomes, whether the judgment is invalid because of failure to mail notice of entry as required by sec. 270.69(3), Stats. This is a question of fact.

The statement in the affidavit of defendants' counsel that notice was not sent as required by statute was on information and belief. This statement did not establish lack of compliance with the statute; at most, it raised the issue whether the requirements of the statute were complied with.

'* * * An affidavit on information and belief is an anomaly. It is not an affirmance of knowledge. It is not proof which would be admitted in evidence on a trial of the issue. The most such an affidavit does is to affirm that the affiant was informed and believes a fact to be true. The proof of the fact is not within the affidavit. * * *' McChain v. Fond Du Lac (1959), 7 Wis.2d 286, 290, 291, 96 N.W.2d 607, 610.

Sec. 269.41, Stats., provides that proof of service of notice may be made by affidavit:

'* * *. Proof of service of notices and papers where no special mode of proof is provided may be made as provided by s. 891.18.'

Under the provision of sec. 891.18, an affidavit of mailing creates a presumption that notice was duly served if the affidavit sets forth facts showing that it was duly served:

'Whenever any notice or other writing is by law authorized or required to be served, the affidavit of the person serving it setting forth the facts necessary to show that it was duly served, shall be presumptive proof that such notice or writing was duly served. * * *'

Under the provisions of this section, respondent is presumed to have served notice as required if his affidavit sets forth facts showing that notice was 'duly served.' Sec. 270.69(3), Stats., requires that notice of entry of judgment be transmitted by certified mail. We conclude that the affidavit of mailing, together with Exhibit 'A' attached thereto and incorporated therein, which is a copy of the notice of entry of judgment, stating that it was sent by certified mail, constitutes presumptive proof that the notice of entry of judgment was...