Purcell v. Kleaver
| Decision Date | 10 December 1897 |
| Citation | 73 N.W. 322,98 Wis. 102 |
| Parties | PURCELL v. KLEAVER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Dane county; R. G. Siebecker, Judge.
Action by Thomas Purcell against Fred Kleaver. From an order refusing to set aside a judgment for plaintiff, the defendant appeals. Affirmed.
This is an appeal from an order which refused to set aside a judgment for $96.13 and costs, entered on a note and warrant of attorney, and an execution issued thereon. The judgment was entered upon a warrant of attorney which reads as follows: “And, to secure the payment of said amount, I hereby authorize, irrevocably, any attorney of said court of record to appear for me in such court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, whether due or not, together with costs, and to waive and release all errors which may intervene in any such proceedings, and to consent to immediate execution upon such judgment; hereby ratifying and confirming all that my said attorney may do by virtue hereof.” The answer was signed by one who, though admitted to practice in this court, had not yet been formally admitted to practice in the circuit court. It is also alleged that the complaint is defectively verified. Nothing is alleged against the validity of the debt or the justness of the judgment. The execution was completely satisfied from the defendant's goods.Haskell & Getts and Buell & Hanks, for appellant.
Bashford, Aylward & Spensley, for respondent.
NEWMAN, J. (after stating the facts).
The order is, no doubt, appealable under Laws 1895, c. 212, § 1, subd. 2. It is an order affecting a substantial right, made upon a summary application after judgment. This was so held in Johnson v. Eldred, 13 Wis. 482, under a statute in the same words, and has been uniformly followed since. That the judgment was for less than $100, and so not appealable, does not affect the rule. Lewis v. Railway Co. (Wis.) 72 N. W. 976.
On the merits: Equity little heeds the complaint of one impeded by a judgment which is merely void, but not unjust, but leaves him to struggle with his embarrassment as best he may, at law. Thomas v. West, 59 Wis. 103, 17 N. W. 684, and cases cited; Wilkinson v. Rewey, 59 Wis. 554, 18 N. W. 513. With consistent indifference, it disregards the clamors of one troubled by a judgment which is only voidable, but not unjust. Shoe...
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Campbell v. Coulston
...a void judgment is by motion, and that a suit in equity for that purpose cannot be maintained. To the same effect, see Purcell v. Kleaver, 98 Wis. 102, 73 N.W. 322. Wilkinson v. Rewey, 59 Wis. 554, 18 N.W. 513, it is stated that the Wisconsin doctrine and authorities are that courts will no......
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Campbell v. Coulston
...“Although void, the court would not be bound to set the judgment aside upon motion, unless it appeared to be inequitable. Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322. Hence an application to set it aside in a measure always appeals to the equitable power and discretion of the court.” Reev......
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Kissinger v. Zieger
...108 Wis. 275, 84 N. W. 426;Roemer v. Schmidt, 134 Wis. 1, 114 N. W. 127;Reeves v. Kroll, 133 Wis. 196, 113 N. W. 440;Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322;Collins v. Smith, 75 Wis. 392, 44 N. W. 510;Meehan v. Blodgett, 86 Wis. 511, 57 N. W. 291; 11 A. & E. Ency. Law, 650.Boden & Beu......
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Agric. Bond & Credit Corp. v. Courtenay Farmers Co-Op. Ass'n
...judgment, and as such is appealable to the Supreme Court notwithstanding the judgment is less than one hundred dollars. Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322;Milwaukee Electric Crane Mfg. Corporation v. Feil Mfg. Co. et al., 201 Wis. 494, 230 N. W. 607;Bailey v. Scott, 1 S. D. 337, ......