Challoner v. Howard

41 Wis. 355

• Court: Wisconsin Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

Cole, J.

More than a year had expired from the entry of judgment, when the defendant Hannah M. Howard moved, so far as she was concerned, to have the same set aside, and the motion was granted. The motion was not founded upon any affidavits whatever, nor even upon an answer showing a defense. It is a bare motion stating certain irregularities in the proceedings as grounds for setting aside the judgment. Hone of these alleged irregularities go to the jurisdiction of the court. It plainly appears that the county court had jurisdiction over the subject matter of the action, and acquired jurisdiction of the defendants by personal service of its process upon them. Manifestly the motion to vacate the judgment was too late, according to the repeated decisions of this court (Ætna Ins. Co. v. McCormick, 20 Wis., 265; Bonnell v. Gray, 36 id., 574; Quaw v. Lameraux, id., 626; Loomis v. Rice, 37 id., 262; and Fornette v. Carmichael, 38 id., 236), and ought not to have been granted. The county court had no power to vacate the judgment for any error in law or fact committed in rendering it or occurring before it was pronounced. The defects, if any existed in the proceedings, were only irregularities. It appears that the petition for a lien was amended after it was filed, by making Hannah a party. This was allowable. Witte v. Meyer, 11 Wis., 296; Brown v. The La Crosse Gas Light & Coke Co., 16 id., 556. Again, the record shows that the petition was addressed to the clerk of the county court instead of the clerk of the circuit court, and therefore it is claimed the petition was not properly filed. The clerk of the circuit court is ex officio clerk of the county court. Sec. 4, eh. 361, Laws of 1860. Beside, it is apparent that if the petition was wrongfully addressed, that would not affect the jurisdiction of the court.

By the Oowrt. — The order of the county court vacating and setting aside the judgment in respect to Hamnah M. Howard is reversed, and the cause is remanded for further proceedings according to law.