Zrimsek v. American Auto. Ins. Co.
| Citation | 8 Wis.2d 1,98 N.W.2d 383 |
| Parties | Edward ZRIMSEK, d/b/a Capitol Engineering Co., Respondent, v. AMERICAN AUTOMOBILE INSURANCE CO., Appellant. |
| Decision Date | 06 October 1959 |
| Court | United States State Supreme Court of Wisconsin |
Geisenfeld & Geisenfeld, Milwaukee, for appellant.
Wittig & Wittig, Milwaukee, Ralph E. Anfang, Milwaukee, of counsel, for respondent.
The action is on a garnishment bond issued on May 21, 1951 whereby the appellant bound itself to pay the sum of $3,000 to the respondent, the condition being (par. 4, Complaint):
'* * * that if the Kadison Corporation shall, on demand, pay to the plaintiff the amount of any judgment recovered against Kadison Corporation by plaintiff, Edward Zrimsek, then the obligation of the bond shall be void.'
The complaint further alleged that the respondent recovered a judgment against Kadison Corporation in the amount of $2,683.85, for which due demand of the Kadison Corporation was made by placing an execution in the hands of the sheriff, said execution having been returned unsatisfied; that the respondent made written demand upon the appellant for payment of said judgment and appellant refused to make payment under the terms of the bond.
Appellant alleged in its answer that the judgment of the respondent against the Kadison Corporation is void for the reason that the Kadison Corporation was in receivership, in which proceedings an order was made prohibiting creditors from entering judgment against it, and no demand for the payment of respondent's judgment had been made of the receiver; and for the further reason that in the action of the respondent against the Kadison Corporation an order was made on October 25, 1954 dismissing said case for want of prosecution; that on November 5, 1954 an order was made vacating the dismissal order on the filing of an affidavit by respondent's attorney for the reinstatement of the case upon the trial calendar; that no notice was ever served upon the Kadison Corporation; that the October 25, 1954 order for dismissal terminated the liability of the appellant upon the bond.
Appellant's alleged defense is an attempt to collaterally attack the default judgment of the circuit court in the respondent's action against the Kadison Corporation. 'Collateral' attack is an attempt to avoid, evade or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing or annulling it. 5 Callaghan's Wisconsin Pleading and Practice, par. 37.97.
The general rule is stated in 49 C.J.S. Judgments, § 401, p. 792, as follows:
'A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except * * * for fraud in its procurement.'
The judgment carries the presumption of validity; appellant shows no fraud in its procurement. The respondent's case against the Kadison Corporation had been noticed for trial and then dismissed without notice on the court's own motion for want of prosecution. Ten days later, on application of the respondent, it was reinstated, also without notice. Judgment was subsequently entered. The question of the court's jurisdiction to reinstate the action was later raised by appellant's receiver on motion to vacate the judgment, which motion was denied, citing sec. 269.28, Stats.:
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State v. Campbell, 2006 WI 99 (Wis. 7/12/2006)
...basis for a criminal prosecution. He relies on Boots v. Boots, 73 Wis. 2d 207, 243 N.W.2d 225 (1976); Zrimsek v. American Automobile Insurance Company, 8 Wis. 2d 1, 98 N.W.2d 383 (1959); State v. Bouzek, 168 Wis. 2d 642, 484 N.W.2d 362 (Ct. App. 1992); Schramek v. Bohren, 145 Wis. 2d 695, 4......
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In re Brianca M.W.
...order terminating a parent's rights, unless it is overturned in a further proceeding, it is presumed valid. See Zrimsek v. Am. Auto. Ins. Co., 8 Wis.2d 1, 3, 98 N.W.2d 383 (1959). In Zrimsek, we explained that a "judgment rendered by a court having jurisdiction of the parties and the subjec......
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State v. Campbell
...basis for a criminal prosecution. He relies on Boots v. Boots, 73 Wis.2d 207, 243 N.W.2d 225 (1976); Zrimsek v. American Automobile Insurance Company, 8 Wis.2d 1, 98 N.W.2d 383 (1959); State v. Bouzek, 168 Wis.2d 642, 484 N.W.2d 362 (Ct.App.1992); Schramek v. Bohren, 145 Wis.2d 695, 429 N.W......
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Jamerson v. Dep't of Children & Families, 2011AP593.
...evidence to undermine a judgment is a collateral attack on and an attempt to evade the judgment); see also Zrimsek v. Am. Auto. Ins. Co., 8 Wis.2d 1, 3, 98 N.W.2d 383 (1959) (explaining that at times a defense actually constitutes a collateral attack on a judgment). ¶ 84 The powers of the D......