Sackett v. Price Cnty.

• Decision Date: 19 February 1907
• Citation: Sackett v. Price Cnty., 130 Wis. 637, 110 N.W. 821 (Wis. 1907)
• Parties: SACKETT v. PRICE COUNTY.
• Court: Wisconsin Supreme Court

130 Wis. 637

110 N.W. 821

SACKETT

v.PRICE COUNTY.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Price County; J. K. Parish, Judge.

Claim by F. W. Sackett against Price county. From an order vacating a judgment for plaintiff, requiring plaintiff to withdraw a transcript of the judgment docket from the office of the county clerk, and vacating certain alleged findings in the conclusions of law, plaintiff appeals. Affirmed.

The plaintiff filed his claim with the county board for certain fees as justice of the peace, and appealed to the circuit court of Price county from an order disallowing it in part. In the circuit court defendant filed a formal answer to the claim, and also set up a counterclaim. The action was tried without a jury during the January term, 1905, and taken under advisement. Afterwards, and on July 5, 1905, a certain paper purporting to be findings of fact and conclusions of law, but without any signature of the judge, was filed with the clerk of the court, reciting, in effect, as facts that the allegations of the complaint were true, that the allegations of the counterclaim were not proven, and as conclusions of law that the plaintiff was entitled to recover of the defendant the amount claimed in the complaint, and ordering that judgment be entered accordingly. Afterwards, and upon the 11th day of July, 1905, without any order or direction from the judge, the clerk entered judgment for $80.58 in favor of the plaintiff, with costs. On the 27th day of July, 1905, the circuit judge made an order, based upon the records and certain affidavits, requiring the plaintiff to show cause before the circuit court of Taylor county at Medford, on September 5, 1905, why the judgment should not be vacated and set aside. On the 24th day of October, 1905, the plaintiff filed a transcript of the judgment, with the necessary affidavits attached thereto, in the office of the county clerk, as provided by section 661, Rev. St. 1898. The order to show cause why the judgment should not be vacated and set aside was heard on affidavits of the respective attorneys, G. E. Schwindt for plaintiff, and Arthur R. Barry, attorney for defendant, and Alex Rasmussen, clerk of the court of Price county, from which affidavits it appeared that there was filed with the clerk of the circuit court alleged findings of fact and conclusions of law, but that said findings were not signed by the Honorable John K. Parish, circuit judge, who tried the action, which fact was discovered on the 15th day of July, 1905, and that no findings of fact and conclusions of law signed by said judge who tried the action had been filed; that on the 27th day of June, 1905, the Honorable John K. Parish, circuit judge, entered in his minutes that the counterclaim of the defendant be dismissed, and the plaintiff recover judgment as prayed for in the complaint; that on the 5th day of July, 1905, plaintiff's attorney filed what purported to be findings of fact and conclusions of law, which had not been signed by the circuit judge, or by any judge, which fact had not been discovered by the clerk of the court until the 15th day of July, 1905; that through inadvertence and error the clerk of the court who entered the judgment failed to note that the alleged findings and conclusions had not been signed by any judge. Other facts appear in the affidavits not necessary to state. Upon the hearing on the order to show cause why the judgment should not be vacated the court on the 2d day of November, 1905, vacated and set aside the judgment, and in such order recited that the judgment in said action was made and rendered by mistake and inadvertence. The court also on the 1st day of November, 1905, on motion of defendant, made an order requiring the plaintiff, within one day after service of a copy of the order, to withdraw the transcript of the judgment docket and affidavits thereto annexed from the office of the county clerk, with $5 costs of motion, and staying all proceedings until the further order of the court. The court also on the 4th day of November, 1905, on its own motion, set aside and vacated the alleged findings and conclusions of law hereinbefore referred to. The appeal is from the three orders above referred to.G. E. Schwindt,...