Reed v. Catlin

• Decision Date: 30 June 1880
• Citation: 6 N.W. 326,49 Wis. 686
• Parties: REED v. CATLIN, IMPLEADED, ETC. REED v. CATLIN, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

49 Wis. 686

6 N.W. 326

REED

v.CATLIN, IMPLEADED, ETC.

REED

v.CATLIN, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed June, 1880

Appeals from circuit court, Pierce county.

Lewis E. Reed and W. F. Vilas, for respondent.

C. L. Catlin, for appellant.

LYON, J.

Each of these actions was brought to foreclose a mortgage executed by the defendant, Catlin, to the plaintiff, and the usual judgment of foreclosure was rendered therein. Catlin made default in both cases, and has appealed from both judgments. The errors assigned for the reversal of the judgments will be considered in their order.

1. The summons and complaint in each action was personally served on the defendant, Catlin, by a person other than the sheriff, who made an affidavit of such service in each case.

First. In one of the cases the affidavit of service is indorsed upon the summons, and complies fully with the statute in that behalf, (Rev. St. § 2642,) except the time of service is not stated in the body of the affidavit. This omission is assigned as error. The jurat shows the date of signing and swearing to the affidavit, which was several months before the judgment was rendered. The jurat must be read with the body of the affidavit; indeed, without it the paper signed by the person who served the summons and complaint is not an affidavit. We think the legal presumption is that the service was made on the day the jurat bears date. Certainly it could not have been made after, although it might have been made before, that date. Reading the body of the affidavit and the jurat together, it seems to us that the statute has been substantially complied with. No object sought by the requirement of the statute in this behalf will fail of accomplishment if this is held a good affidavit of service. The cases in this court cited by the learned counsel for the appellant, to show the insufficiency of the affidavit, all relate to the place or manner of service, or the existence of facts which would authorize other than personal service. In none of those cases was there anything on the face of the affidavit itself to supply the omission held fatal to the service, while in this case the omission in the body of the affidavit is supplied by the jurat. It is believed that those cases are not in conflict with our ruling on the sufficiency of the proof of service in the case under consideration.

Second. In the other case the affidavit of service complies fully with the statute, but it is annexed to the summons instead of being indorsed upon it, as in the other case, and is entitled in the action. The appellant is referred to therein as “the above-named defendant, Francis P. Catlin.” It is said that this reference fails to identify the person served with the defendant of the same name against whom the summons was issued. It is sufficient to say that we perceive no force in the point. We think the affidavit shows a valid service upon the appellant.

2. Each record contains an affidavit of the plaintiff of the non-appearance of the appellant and his failure to answer within the time required by law. The venue of these affidavits in the caption is “Fond du Lac County,” whereas the affidavits were sworn to before the clerk of the district court of Pierce county on the day the judgments were signed. It is manifest that they were sworn to in the latter county. Error is alleged upon these affidavitsbecause of such mistake in the venue. It is sufficient to say that the statute (Rev. St. 766, § 2891) authorizes the plaintiff to apply to the court for judgment in such cases, on proof (among other things) that no answer or demurrer has been received. The statute does not require an affidavit, and under the decisions of this court the defective affidavits are valid as oaths, and competent proof of the facts stated in them. Burns v. Doyle, 28 Wis. 460;Ball v. Bowe, 5 N. W. REP. 627, Wis. 909.

Moreover, both judgments recite that no answer, demurrer or notice of appearance had been served by the appellant. In the absence of the affidavits probably the presumption would be that the court found the fact of such default on other legal and sufficient proof not preserved in the record. The statute last cited (section 2891, subd. 1) requires that such proof be filed with the clerk in cases in which the clerk may enter judgment on default. Such filing is a condition precedent to the authority of the clerk to enter the judgment. The clerk is not a judicial officer, and in the absence of the required proof from the record there is no presumption that it was presented to him. The validity of such a judgment must, therefore, be determined by the record alone. Hence, the necessity of the requirement that the proof be filed with the clerk. The second subdivision of the section authorizes the plaintiff to apply to the court for judgment in other actions wherein the defendant has made default “upon the like proof.” The application for judgments in these cases was made under that subdivision. The words “upon the like proof,” contained therein, evidently mean upon proof of the facts required to be shown in subdivision 1 of the section, which confers authority upon the clerk to enter judgment in certain case...