Pormann v. Frede

39 N.W. 385, 72 Wis. 226, 1888 Wisc. LEXIS 232

• Court: Wisconsin Supreme Court
• Decided: September 18, 1888
• Status: Published

Opinion

Cassoday, J.

The counter-affidavits on the part of the plaintiff were such as to justify the court in refusing to set aside the judgment upon the merits for the grounds stated in the motion papers. This seems to be conceded. In fact, the moving papers failed to show any meritorious defense to the cause of action alleged in the complaint. The only grounds for the motion are alleged irregularities in the entry of judgment and the taxation of costs. The judgment, having been entered in pursuance of an order of the court made on the same day, must be regarded as a judgment of,the court while in session. The plaintiff was clearly entitled to the judgment entered upon the pleadings. Sec. 2892, R. S.; Eureka Steam Heating Co. v. Sloteman, 67 Wis. 126. The irregularities complained of consist in the failure to give notice of the application for such judgment, and the failure of the clerk to enter in his minutes a statement of the application. The motion to set aside the judgment upon that ground was not made until the next term, and hence came too late. Frankfurth v. Anderson, 61 Wis. 107; Egan v. Sengpiel, 46 Wis. 703. Besides, it is not the policy of the law to set aside judgments for mere irregularities which do not affect the substantial rights of the adverse party. Sec. 2829, R. S.; Rollins v. Kahn, 66 Wis. 658. If the costs were taxed too high, the defendant’s remedy was to retax the same. Rollins v. Kahn, 66 Wis. 662.

By the Court.— The order of the circuit court is affirmed.