Mabbett v. Vick

Cole, C. J. The point was much discussed on the argument, whether the assignment of the judgment would have the effect to transfer the right of action of the assignor against the constable for a false return. It is said by defendants’ counsel that such a cause of action sounds in tort, does not survive to the personal representative at common law, and is not assignable under the statute. Whether this position is sound we shall not decide. For the purposes of this case we assume that the right of J. S. Mabbett to bring an action against the constable for a false return was transferred to the plaintiff by the assignment of the judgment, and that the plaintiff can maintain this suit if his assignor could. But we do not think J. S. Mabbett himself could maintain the action upon the facts appearing in the record'. Of course the defendant constable was not a party to the proceedings in the [162] circuit court, setting aside the judgment in the case of Mabbett v. Platto, and is not bound by them. So far as he is concerned, they are res inter alios asta. He has the undoubted right to attack the regularity and validity of those proceedings in this action. Such being the case, we must inquire whether the order of the circuit court, setting aside the judgment of the justice, was properly made. It is a matter of grave doubt whether the circuit court has power, upon any state of facts which might be presented, to set aside a justice’s judgment as was attempted .to be done in this case. A transcript of- the justice’s judgment had been filed, and a motion, founded on such transcript and affidavits produced by the moving party, was made to set aside the justice’s judgment. On the hearing of that motion, the circuit court “ ordered that the judgment heretofore rendered herein be, and the same is hereby, set aside without costs.” What authority has the circuit court, on such a motion, to review the sufficiency or regularity of the judgment rendered by the justice? Doubtless the circuit court has control, to a certain extent, over such transcripts, and may strike them off the record, or vacate any entries made upon them, in a proper case. Steckmesser v. Graham, 10 Wis., 37. Rut we do not understand that the circuit court, on such a motion, has power to réview or reverse the justice’s judgment for any reason. It is true, the statute provides, when a transcript has been filed, that every such judgment, from the time of the filing of the transcript, shall be deemed the judgment of the circuit court, be equally under the control thereof, and be carried into execution, both as to the principal judgment debtor and his surety, if any, in the same manner and with like effect as the • judgments thereof. Section 2900, R. S. We do not, however, think this provision was intended to or does confer the power on the circuit court, on a motion based upon the transcript and affidavits showing irregularities or even want of jurisdiction before the justice, to reverse and set aside a justice’s judgment. On a [163] proper showing, as we have said, the circuit court may strike the transcript from its records, or refuse to enforce it by execution. This, we think, is, the extent of the power of the circuit court over such a transcript and judgment. But, conceding that we are wrong in this view of the law, still we are clearly of the opinion, if the circuit court had the same power over the judgment in question as it has over its own judgments, that no case was made by the judgment debtor for setting it aside or interfering with the transcript. This court has frequently decided that the power to vacate a judgment by confession is an equitable one, and will be exercised on equitable principles (Pirie v. Hughes, 43 Wis., 531); and this case should, under the circumstances, stand upon the same ground. The judgment debtor did not claim that the judgment was unjust or inequitable for any reason. He merely insisted that the justice did not acquire jurisdiction of his person by the service of process which was made by the constable. In this he was mistaken-! The justice prima facie had jurisdiction by virtue of the return of the constable. The return’states that the summons was duly served upon the defendant by reading the same and giving him a copy, on the 25th day of November, 1876. . But it is insisted that this return is not conclusive in this action as to the manner of service (Carr v. Commercial Bank, 16 Wis., 51), but could be and was shown to be false in fact. We may assume the facts as to the manner of service of the summons to be as stated by Mr. Blatto in his affidavit- which was used on the motion to set aside the judgment, though in some material points he is contradicted by the testimony of the officer. Mr. Platto admits and states that on the 25th of November, 1876, there was delivered to and left writh him by the officer the paper which he describes as an “ exhibit.” That paper is a copy of a summons issued by the justice in the usual form, bearing date November 23d. The return day, as therein stated, is November 2, 1876. Now there are two objections taken by counsel to the service of this process. First, it is insisted that both’ [164] the original summons and the copy failed to conform to the style of writs and process as prescribed by section 17, article YII of the constitution, and were therefore void. The style of the summons was “State of Wisconsin,” instead of “The State of Wisconsin,” the article being omitted. But we do not think the word “the” before the word “state” was a fatal defect, or that it was essential to show that the summons was the process of the state, and ran in the name of the state. ' The objection on that ground seems really hypercritical, and we overrule it without further comment. The other objection relates to the mistake in the return day as given in the copy served. In regard to that we have this to say, that we think it affords no ground for setting aside the judgment. Mr.. Platto does not claim or pretend in his affidavit that he was misled by the clerical error as to the return day, or was in any way prejudiced by it. No man of ordinary sense — saying nothing about an intelligent member of the legal profession, as Mr. Platto is — could for a moment be in doubt as to the proper return day. And if he had had any defense to the action on the merits before the justice, he would doubtless have appeared and made it. To contend that he had not notice of the suit seems almost like trifling with courts. He certainly had notice of the commencement of the action against him by J. S. Mabbett, had an opportunity to defend that suit had he seen fit to do so, and does not pretend that the judgment which was rendered was inequitable or unjust. He. applied to have the judgment set aside, and it was vacated for a mere irregularity in the service of the copy of the summons, which could not possibly have misled him in any way as to the return day. Of course, no equitable grounds existed on these facts for setting the judgment aside. These views would be fatal to a recovery in this action for a false return even were the suit brought by the judgment creditor, J. S. Mabbett, himself. By the Court.— The j udgment of the county court is reversed, and a new trial ordered.