Bonnell v. Gray

Ryan, C. J.

Three points were relied on in the court below to vacate the judgment, and in this court to reverse it.

1st. That the complaint was not properly verified to authorize the clerk’s entry of the judgment, without an assessment of damages first made and reported by him.

The complaint was on promissory notes of the defendant, and averred all the facts positively. In attempting to comply *578 with sec. 19, ch. 125, R. S., and the rule in Crane v. Wiley, 14 Wis., 658 , the attorney who verified the complaint, stated that his knowledge was derived from the notes themselves and from the admissions of the plaintiff to him ; probably intending the admissions of the defendant. Perhaps the verification is strictly defective under the rule; and therefore an assessment by the clerk was necessary, under the provisions of sec. 27, ch. 182, R. S. Trumbull v. Peck, 17 Wis., 265 . But the assessment should be made on the notes only, without other evidence; would be formal only; and the report could be no more than a formal computation of the principal and interest due on the notes. This is otherwise sufficiently certain by the notes themselves, which are in the judgment roll; and a report of the assessment could add nothing .new to the record to support the judgment. Id cerium est quod certum reddi 'potest. The statute does not expressly require the clerk to make a report; and we might be authorized to infer his assessment from the fact of his signing the judgment.

Gorman v. Ball, 18 Wis., 24 , turned upon a contract not for the payment of money only, and an assessment of damages such as were formerly assessed by a jury on a writ of inquiry. In cases ex contractu, the clerk is now authorized to assess them, as the sheriff’s jury used to do, on evidence given before him. In such cases the record does not necessarily disclose the proper amount of damages, and does not at all disclose the clerk’s process of assessment. And the court held that, although the statute does not in terms require it, the clerk’s report of his assessment should be made part of the record, to support the judgment. The language of the court is broad enough to cover all assessments by the clerk; but it must be understood as applied to the case before it. It is not necessary here to consider whether the judgment in Gorman v. Ball is consistent with the cases cited infra, on the effect of sec. 40, ch. 125, R. S., or could now be followed. The opinion is undoubtedly correct *579 in relation to assessments of the character before the court in that case.

In all cases of assessment by the clerk, it would undoubtedly be better practice to make and file a report of the assessment, as was formerly done. But the error of omitting to do so, in such a case as this, if error it be, is purely formal and immaterial.

Some criticism was made, in this connection, on the affidavit of the plaintiff’s attorney denying notice of appearance and service of answer. It was objected that the affidavit was too general, and should have specifically negatived service on the plaintiff’s attorney. Perhaps so; the affidavit seems to have been carelessly worded. But omne majus continet in se minus ; and surely the broad negative of service on any one, negatives service on the person who so swears. The service denied must be held to be the service required by law, service on the plaintiff’s attorney.

2d. That, before judgment, a proper demand and notice to change the place of trial, under Tay. Stats., ch. 123, § 5 (p. 1423), had operated to stay proceedings.

The judgment roll discloses no appearance or proceeding by the defendant, before judgment. But in support of the motion to vacate the judgment, an affidavit of the defendant’s attorney was filed, stating service by mail of notice of appearance for the defendant, and demand and notice of motion to change the place of trial to the defendant’s county.

The second clause of sec. 4, ch. 123, R. S., gives to the plaintiff an election of the county in which he may commence his suit, subject to the defendant’s right to remove it to the proper county. Pereles v. Albert, 12 Wis., 666 ; Lane v. Burdick, 17 id., 92. That general right is given to the defendant, by sec. 4, without any provision for stay of proceedings.

Sec. 5, as found in Mr. Taylor’s edition, was subsequently added to the chapter in 1869. It specially provides for cases where the action is commenced in a county in which the de *580 fendant does not reside, and where the summons is served in a county in which the defendant does not reside ; and makes the demand and notice of motion to change the place of trial operate to stay proceedings. But both conditions must concur to give the demand that operation.

In the present case, the defendant resided in Portage county, and therefore demanded the removal to that county. And an inspection of the record shows that the summons was served on him in that county. The demand could not therefore operate to stay proceedings.

3d. That the defendant, having given notice of appearance, was entitled to notice of the assessment of damages, which he did not receive.

A counter affidavit was made by the' plaintiff’s attorney, denying the receipt of the notice of appearance and demand of change of place of trial; and some comments were made upon the sufficiency of the affidavit of their having been mailed. But we are disposed to consider the notice as proved.-

Had the complaint been properly verified, notice of the assessment would not have been necessary. Trumbull v. Peck, supra. It is only required when the complaint is not verified. It is not easy to see why the statute makes the distinction, because in both cases judgment goes for the amount due on the face of the instrument for the payment of money onty. The notice, in the case in question, is certainly formal, not affected by or affecting the substantial rights of the parties. But, assuming the insufficiency of the verification, and the service of notice of appearance, in this case, an assessment of damages without notice was a formal irregularity.

The motion in the court below was made, and these appeals are prosecuted, by the defendant’s assignee in bankruptcy. But the assignee represents no different interest than the defendant’s. And the appeals must be considered as if made by the defendant himself.

The motion, apart from other difficulties, was clearly too *581 late, within the rule in Ætna Ins. Co. v. McCormick, 20 Wis., 265 . It was made without affidavit of merits or disclosing any defense. There is no pretense, anywhere, that the defendant had any color of defense against the plaintiff’s demand or any part of it Nothing is relied on to disturb the judgment, except the alleged irregularities. And the motion, if made in time, should have been overruled.

As there is no pretense of meritorious defense against the plaintiff’s recovery, it seems very certain that any errors or defects in the verification of the complaint, or in the failure of the clerk to make an assessment or to file a report of it, or in the failure of the plaintiff to give notice of the assessment, or in the disregard of the demand of change of place of trial, are mere irregularities, which could not affect the substantial rights of the defendant. They are matters of practice, which might have been questioned before judgment. But they are errors, if errors, clearly within sec. 40, ch. 125, R. S., to be disregarded in every stage of the action, and for which the judgment cannot be reversed. There may be cases in this court in which the beneficent provisions of that section have been overlooked ; but they have been applied in great variety of circumstances, to great variety of irregularities, when the attention of the court has been directed to them. See, amongst other cases, Blaikie v. Griswold, 10 Wis., 293 ; Warren v. Gordon, id., 499; Boyd v. Weil, 11 id., 58; Rahn v. Gunnison, 12 id., 528; Brookins v. Shumway, 18 id., 98; McIndoe v. Hazelton, 19 id., 567; Holmes v. McIndoe, 20 id., 657; Young v. Schenck, 22 id., 556; Decker v. Trilling, 24 id., 610; Tarbox v. French, 27 id., 651; Bowman v. Van Kuren, 29 id., 209; Allard v. Lamirande, id., 502 ; Eldred v. Oconto Co., 33 id., 133; Damp v. Dane, id., 430.

By the Court. — The order denying the motion to vacate the judgment and the judgment, are affirmed.