Morrison v. Austin

By the Court, DixoN, C. J. The-objections to tbe judgment roll introduced in evidence by tbe defendant below are altogether too nice. Tbe law is not .so precise as to send a deserving suitor out of court because bis attorney or tbe clerk has neglected to cross a t or dot an i. Courts will not turn away from tbe merits of a controversy upon sucb flimsy excuses. Those here urged for defeating what tbe jury have found to be a valid claim, are scarcely more substantial. Tbe word “ tbe” in tbe affidavit of no answer, and tbe word “receive” in tbe judgment, appear at a glance to have been inserted by a mere slip of tbe pen, tbe one 'for tbe word “no” and tbe other for tbe word “recover;” and this is so obvious tbat no person, in tbe least accustomed to tbe perusal of sucb papers, could for a moment be misled, or hesitate at all as to tbe real intention of tbe writer. They -are sucb mistakes as tbe court could at any time have corrected, and as must have been disregarded' in every stage of tbe action. B. S., chap. 125, §§ 37, 40. If tbe case bad come [604] before us on appeal or by writ of error, we must bave disregarded tbem and affirmed the judgment. We think, therefore, that they must be disregarded when it is collaterally called in question. The objection to the execution stands on little better foundation. It is true that a defendant may be the judgment creditor, and that the execution did not state in whose favor the judgment was rendered ; but the fact that it was subscribed by the attorneys for the plaintiff, sufficiently indicated that the judgment was against the defendant in the action, and that he was the judgment debtor spoken of. If that was not enough, a reference to the judgment and the roll, which were accurately described as required by statute, would have removed any doubts. Another objection not noticed by counsel is, that the summons and complaint were not personally served upon the defendant. The entry of judgment by the clerk was therefore unauthorized. Moyer vs Cook, 12 Wis., 335. But as the return of the sheriff shows due service by copy, jurisdiction was complete and the entry merely irregular. It was good until set aside upon motion. The verdict comprehends all the issues made by the pleadings. The right of possession of the property was not put in issue, but only the title. The judgment may be irregular, but it is not an irregularity of which the plaintiff can complain. In Pratt vs. Donovan, 10 Wis., 378, where the property was taken from the defendant and delivered to the plaintiff, and the defendant succeeded in the action, we held that it was optional with him, under section 187 of the Code, now section 31 of chapter 132 of the Revised Statutes, to take judgment for the value of the property alone, or in the alternative for the return of the property or the value in case a return could not be had, as he might see fit. In that case the defendant did not claim a return in his answer. In this he does. Whether where a return is thus claimed, the defendant may waive it at the trial or upon the entry of judgment, and take judgment for the value, need not now be determined. The judgment here is for the return without the alternative, if it cannot be [605] bad, tbat tbe defendant recover tbe value from tbe plaintiff. Tbe right to take a personal judgment, if for any reason return of .tbe property cannot be obtained, is clearly intended for tbe defendant’s benefit. It is necessary for bis protection where be elects to have a return and fails in securing it. If be chooses to waive it and take tbe chances of obtaining a return of tbe property or realizing nothing from bis judgment, the plaintiff ought not'to object. Tbe judgment is for less than tbe defendant is by law entitled to, and more favorable to tbe plaintiff than be could claim, and hence be cannot be aggrieved by it. Judgment affirmed.