Seymour v. Board of Supervisors

(1, 2) Vacating judgment at subsequent term. (3, 4) Vacating judgment taken upon default. 1. The circuit court has no power to vacate a judgment at a subsequent term, on the ground that the action was against the board of supervisors of a county, and the original prayer was for judgment against the county, and the original judgment was in that form, but was amended so as to run against the supervisors. On appeal, therefore, from an order refusing, at a subsequent term, to vacate such judgment, it is immaterial whether the court had ever allowed an amendment of the complaint and judgment in the particular mentioned, or whether such amendment, if allowed, was regular, or not. 2. The granting or refusing of an order to vacate a judgment at a subsequent term, on the grounds named in sec. 38, ch. 125, R. S., is within the sound discretion of the trial court; and tins court will not interfere with such discretion, except in a strong case. 3. Where the judgment is taken in default of an answer, the tiial court has a right to know the specific grounds of defense relied upon, before vacating it to let in an answer at a subsequent term; and the failure of the motion papers in tins case to give the court such information would justify its refusal to vacate the judgment. 4. It does not appear on what grounds the trial court refused to vacate the judgment here in question; and tins court would hesitate to say, upon the record, that there would have been any abuse of discretion in refusing on the ground that defendant had not satisfactorily excused its default.

APPEAL from the Circuit Court for Chippewa County. This is an action upon a large number of county orders, in the usual form, purporting to have been issued by the authority of the defendant board of supervisors. The complaint states a separate cause of action on each, order in favor of the plaintiff, and is verified. The defendant failed to answer within the time prescribed by law, or to appear in the action, and judgment by default was rendered for the full amount of plaintiff’s claim. It appears from the record that tlie demand in the original complaint was for a judgment “against the defendant, the said county of Chippewa,” and that in the first instance the judgment was rendered against said county. A motion was made by the plaintiff, after judgment, for leave to amend both the prayer for relief and the judgment by inserting therein the wm’ds “ the board of supervisors of,” before “ Chippewa county.” It does not appear whether or not the motion was granted, but the judgment was so amended. At a subsequent term the defendant moved the court to vacate the judgment, and for leave to defend the action. The motion was founded -upon a proposed answer, an affidavit of merits in the usual form, and certain affidavits in which the failure to appear, and answer is sought to be excused. Such answer is merely a general denial of about one-fourth of the causes of action stated in the complaint, and an admission of the residue thereof. From an order denying that motion, the defendant appealed. who argued that the action should have been brought against the board of supervisors (Tay. Stats., 295, § 21); and that, even assuming the judgment to have been amended by order of the court, so as to be against the supervisors, it is irregular and cannot stand, because the complaint does not demand judgment against the board, but against “ the county of Chippewa.” The complaint has never been amended; nor could it be effectually amended without service of a copy upon the defendant. Service of summons upon a party by a wrong name gives the court no jurisdiction over his person; nor can jurisdiction be acquired by amendment after service. 1 Wait’s Pr., 473; 3 id., 729, sec. 1, and 730, sec. 2; Hoffman v. Fish, 18 Abb. Pr., 76; Cole v. Hindson, 6 Term, 234; Griswold v. Sedgwioh, 6 Cow., 456. When the defendant fails to appear, the court has no power to grant an amendment of the process or pleadings. 1 Wait’s Pr., 473. If plaintiff had a right to amend the judgment without amending the complaint, still the amendment should be made by appending the order therefor to the roll, as well as entering it in the proper booh, and by referring in the margin of the entry of judgment, to the amendment, as made by an order of such a date; and the original judgment should not be erased or obliterated. 4 Wait’s Pr., 672, sec. 5; 2 Rosw., 673. The amended judgment in this case was not entered at length, but was manufactured from the original judgment by obliterating and erasing parts thereof. 2. The affidavits read for the plaintiff sufficiently excuse its failure to answer within the time limited by law. Johnson v. Eldred, 13 Wis., 482; Butler v. Mitchell, 15 id., 355. 3. The proposed answer contains a general denial of all the allegations of the complaint not specifically admitted. Except as to such admitted facts, the general denial puts in issue every fact alleged, expressly or impliedly; every fact which the plaintiff must prove in order to make out his case. Prmdle v. Omuthers, 15 H. Y., 425; Benedict v. Seymowr, 6 Iiow. Pr., 298; Yan Santv. PL (2d ed.), 407. It was argued for the respondent, that the defendant had not sufficiently excused its default; and that it was within the sound legal discretion of the trial court, spoken of in Johnson v. Eldred, 13 Wis., 482, to refuse to open the judgment where the proposed answer failed to disclose any definite ground of defense.