Wadsworth v. Willard

22 Wis. 238

• Court: Wisconsin Supreme Court
• Decided: September 15, 1867
• Status: Published

Opinion

Dixon, C. J.

There was no judgment in the court below, and the proceedings purporting to be such ought to have been set aside on the defendant’s motion. To constitute a judgment hy confession, or upon warrant of attorney, it must be signed hy a judge or court commissioner. R. S., chap. 140, sec. 15. Without such signature, it is merely a void proceeding. Remington v. Cummings, 5 Wis., 138. To authorize the entry of judgment by the clerk, an action must have been commenced hy personal service of the summons and complaint, or of the summons; or the defendant must by answer, either expressly or by not denying, have admitted the whole or some part of the plaintiffs’ claim to he just; in which case, also, at least five days’ previous notice of the intended application for judgment must have been given to the defendant. R. S., chap. 132, sec. 27, subd. 1 and 4. In no other case can the clerk enter a judgment without express direction from the court, a judge, or a court commissioner. The entry here was hy the clerk alone, without personal service of a summons, without an answer, and without the five days’ previous notice to the defendant. It was entered upon the sworn statement or confession of the defendant, endorsed upon the hack of the complaint. To uphold the entry of judgment by the clerk without the service of process, if such entry he authorized, as I am inclined to think it is, the provisions of the statute must be strictly complied with, especially as to the notice, which, if not given, is clearly a jurisdictional defect, that may he taken advantage of at any time hy motion to set the proceedings aside. Ætna Insurance Co. v. McCormick, 20 Wis., 265; Weatherbee v. Weatherbee, id., 499.

■By the Court. — Order reversed.