Eller v. Miller

124 N.W. 258, 141 Wis. 225, 1910 Wisc. LEXIS 14

• Court: Wisconsin Supreme Court
• Decided: January 11, 1910
• Status: Published

Opinion

Marshalt.,, J.

The claim is made that equity jurisdiction is invokable, generally, to restrain the enforcement of a judgment on cognovit, citing United Brethren Church v. Vadusen, 37 Wis. 54, and that, logically, it is available to prevent an unjust entry of such a judgment.

The learned counsel misapprehends the scope of United Brethren Church v. Vandusen. It is often found stated that a judgment on cognovit may be questioned in equity; that relief from injustice in such a case is not confined to such as may be obtained by motion in the proceedings, nor defenses to proceedings to enforce the judgment. Brown v. Parker, 28 Wis. 21; Smith v. Willing, 123 Wis. 377, 101 N. W. 692. The rule in that regard does not go to the extent of rendering equity jurisdiction available in all cases. It is proper when needed for efficient protection of the judgment debtor, ordinary remedies not reaching the case at all or doing so only inadequately. There is nothing otherwise in either of the cases cited to our attention, decided by this court.

Here, had judgment been entered according to the alleged threat, the court, on motion, would have set it aside as to ex-cessiveness and protected plaintiff, in case of his having meritorious defenses or counterclaims, by opening the proceedings, so far as necessary for that purpose, and permitting proper issues to be formed and tried, as in an action in equity or at law, according to the necessities of the situation. Jones v. Keyes, 16 Wis. 562; Dilley v. Van Wie, 6 Wis. 209; Blaikie v. Griswold, 10 Wis. 293; Second Ward Bank v. Upman, 14 Wis. . No reason whatever is perceived why appellant could not readily have obtained all needed relief without an independent action in equity.

The circumstance that judgment had not been entered does not give any greater right to equitable interference than would have otherwise existed, since the mere threat to take an excessive judgment did not work any prejudice to appellant. The threat, if carried out, would, as to the excess, have been easily remediable on motion, and no showing was made, as stated, indicating that appellant cannot recover any sum respondent ought, under any circumstances, to credit on the note. Moreover, the uncontradicted affidavit of respondent states such competency. •

Furthermore, it appears, uncontradicted, that there was no danger whatever of the entry of judgment for an excessive amount.

It follows, that, whether the court dissolved the temporary injunction for want of equity to warrant the use of its extraordinary jurisdiction, or because, in any event, appellánt did not need the temporary injunction for protection from any probable harm; in other words in the exercise of discretionary power, the order was proper.

By the Court. — Order affirmed.