Gorman v. Ball

By the Oourt, PAINE, J. The counsel for the plaintiff in error is mistaken in supposing that the decision of this court in Wells v. Morton, 10 Wis., 468, held that clerks of the circuit courts are clothed with any judicial power, or become tribunals of inferior jurisdiction, subject to the principles applicable to that class of tribunals. On the contrary, the decision of the majority was based upon the assumption that judgments entered by the clerk in vacation, under the statute, are to be held and regarded as the judgments of the court, as much so as though entered in term time. This renders inapplicable that portion of the argument in which the counsel [27] seeks to apply to this judgment those rules which govern in passing upon the acts of inferior tribunals of limited jurisdiction. But we are still of the opinion that the judgment must be reversed, for the reason that there is nothing in the record showing that the amount of the damages has ever been legally ascertained. The complaint not being sworn to, it was the duty of the clerk to ascertain and assess the amount due to the plaintiff, from his examination under oath or other proof. R. S., chap. 132, sec. 27. And to sustain the judgment the record should show that such assessment was made. The default does not dispose of the question of damages. If the complaint had been sworn to, it would have done so. But not being sworn to, that still remained as an open question, in the nature of an issue of fact as to the amount due. Formerly it would have been disposed of by a jury, and their verdict upon it would have constituted an essential part of the judgment roll, just as the verdict was on an issue of fact where such issue was made by the pleadings. And on error, if the record shows a judgment on an issue of fact, but shows no verdict or finding by which that issue was disposed of, the judgment cannot stand. For although if its validity were questioned collaterally, it might be presumed that there was such a verdict or finding, yet such would not be the case on a direct proceeding to reverse it. There the record must show such a disposition of the issues in the case as to authorize the judgment. And this rule would, without doubt, under the old practice, have extended to the question of the amount of damages on a default, in cases where an assessment by a jury was necessary, so as to require the record to show their verdict. And we think it equally applicable to the same question under the present practice, where an assessment is required to be made by the clerk. Section 35, chapter 132, provides that in cases where the complaint is not answered, the judgment roll shall contain, [28] among other things,. “ the report, if any.” This seems clearly to contemplate that in those cases where an assessment is necessary, there must be a report to show the amount for which the judgment should .be-entered. The words, “if any,” were not designed to render it' discretionary whether to report or not, in cases where a report would be proper, but to distinguish between those cases where an assessment was necessary and those where it was not. We are therefore of the opinion that although section 27 does not expressly provide that the clerk shall make a report ■ or statement showing his assessment, yet from all the provisions of the statute on the subject, and from the nature of the proceeding itself, such a rule is fairly to be implied. The following cases sustain our conclusion: Daniel v. Judy, 14 B. Mon., 393; Clarke v. Seaton, 18 id., 227; Thompson v. Haskell, 21 Ill. 215; Squire v. Elsworth, 4 How. Pr. R., 77. The judgment is reversed, with costs, and the cause remanded.