F. Mayer Boot & Shoe Co. v. Falk

Wisconsin Supreme Court

F. Mayer Boot & Shoe Co. v. Falk

61 N.W. 562, 89 Wis. 216, 1895 Wisc. LEXIS 127

CourtWisconsin Supreme Court

DecidedJanuary 8, 1895

StatusPublished

Cited by7 cases

This text of 61 N.W. 562 (F. Mayer Boot & Shoe Co. v. Falk) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

F. Mayer Boot & Shoe Co. v. Falk, 61 N.W. 562, 89 Wis. 216, 1895 Wisc. LEXIS 127 (Wis. 1895).

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Opinion

NbwmaN, J.

• No doubt, the question whether the affidavit was sufficient to authorize the entry of judgment was a question for judicial determination; and although it was to be determined by a court commissioner, yet for all purposes of review it is to be deemed to have been determined by the court. It cannot be attacked in a collateral action, but only in a direct proceeding. Frankfurth v. Anderson, 61 Wis. 107. It seems to be well settled that even if the affidavit which is attached to the complaint on which judgment is confessed, under sec. 2896, R. S., is defective and insufficient under that section, yet the judgment is not void, 'but only voidable, and that in the absence of equities on the part of the debtor it will not even be set aside on motion, and that creditors are in no better position to take advantage of the error than is the debtor himself. Rogers v. Cherrier, 75 Wis. 54; Marshall & Ilsley Bank v. Milwaukee Worsted Mills, 84 Wis. 23; Horning v. E. Griesbach Brewing Co. 84 Wis. 71. These decisions seem to cover amply all the questions in the case.

By the Court.— The order of the superior court of Milwaukee county is affirmed.

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NbwmaN, J.

• No doubt, the question whether the affidavit was sufficient to authorize the entry of judgment was a question for judicial determination; and although it was to be determined by a court commissioner, yet for all purposes of review it is to be deemed to have been determined by the court. It cannot be attacked in a collateral action, but only in a direct proceeding. Frankfurth v. Anderson, 61 Wis. 107. It seems to be well settled that even if the affidavit which is attached to the complaint on which judgment is confessed, under sec. 2896, R. S., is defective and insufficient under that section, yet the judgment is not void, 'but only voidable, and that in the absence of equities on the part of the debtor it will not even be set aside on motion, and that creditors are in no better position to take advantage of the error than is the debtor himself. Rogers v. Cherrier, 75 Wis. 54; Marshall & Ilsley Bank v. Milwaukee Worsted Mills, 84 Wis. 23; Horning v. E. Griesbach Brewing Co. 84 Wis. 71. These decisions seem to cover amply all the questions in the case.

By the Court.— The order of the superior court of Milwaukee county is affirmed.

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Bluebook (online)

61 N.W. 562, 89 Wis. 216, 1895 Wisc. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-mayer-boot-shoe-co-v-falk-wis-1895.

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