Trumbull v. Peck

17 Wis. 265

• Court: Wisconsin Supreme Court
• Decided: June 15, 1863
• Status: Published

Opinion

By the Court,

DlXON, 0. J.

Pech sued Trumbull upon a prom - issory note, commencing bis action in the circuit court for Dane county. The complaint was duly verified, and together with the summons was personally served upon the defendant at Eacine. Before the expiration of the time for answering, Trumbull appeared in the action, and by his attorneys demanded that the trial be had in the county of Eacine, to which the plaintiff’s attorney consented in writing. The cause was accordingly transferred to Eacine. After default, the attorney for the plaintiff filed his affidavit of no answer or demurrer^and caused judgment to be entered by the clerk in conformity with the demand of the complaint. This was done without notice to the attorneys for the defendant, who now claim that they were entitled to notice and assessment of damages. This is the only error assigned. A glance at the statute will show the fallacy of this claim. R. S., ch. 132, sec. 27, subd. 1.

It is only where the complaint is '“ not sworn to ” thát there is to be an assessment; and of course where there is no assessment there can be no notice of it.

Judgment affirmed.