Schobacher v. Germantown Farmers' Mutual Insurance

Cassoday, J. 1. It is urged that the amended complaint fails to state a cause of action, because it does not allege that the written notice and proofs of loss were given in the time and in the manner required by the policy. But we cannot treat the judgment as a nullity under the facts here presented for any such reason. In pleading the performance of conditions precedent in a contract under our statute, it is not [90] necessary to state the facts showing such performance, but the same may be stated generally, that the party duly performed all the conditions on his part. Sec. 2674, R S.; Reif v. Paige, 55 Wis., 502. This general allegation, under that section, was sufficient to cover notice and proofs of loss. Boardman v. Westchester Fire Ins. Co., 54 Wis., 365. All conditions subsequent in the policy were matters of defense, and needed not to be negatived in the complaint. McDowell v. Laev, 35 Wis., 172; Redman v. Ætna Ins. Co., 49 Wis., 431; Cannon v. Home Ins. Co., 53 Wis., 591. We must, therefore, for the purposes of this motion at least, treat the complaint as stating a good cause of action. 2. It is urged that, although this is an action arising on contract, yet it is for unliquidated damages, and hence is not “ for the recovery of money only,” within the meaning of subd. 1, sec. 2891, R. S., and that, therefore, the clerk of the court had no authority to enter judgment for the amount demanded in the complaint upon an affidavit of default, notwithstanding the complaint was duly verified. In Gorman v. Ball, 18 Wis., 26, it was held “that judgments entered by the clerk in vacation, under the statutes, are to be held and regarded as the judgments of the court; as much so as though entered in term time.” That was an action to recover the price of a reaper and mower, brought upon the contract of purchase. The complaint was not sworn t'o, and the judgment taken on default before the clerk failed to show an assessment of damages, and it was reversed on writ of error by reason of such failure. But the opinion of Paine, J., expressly states: “ 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.” While that was an “ action arising on contract for the recovery of money only,” within the meaning of the first clause of that subdivision, yet it [91] was not “on an instrument for the payment of money only,” within the meaning of the last part of that subdivision. Bonnell v. Gray, 36 Wis., 578. Under that subdivision, and in cases ex contractu, in which the complaint is not verified, the clerk is authorized to assess damages on evidence given before him, the same as the sheriff’s jury used to do. Hid. Where the complaint is not verified, “ and such action is on an instrument for the payment of money only,” the instrument itself produced to the clerk is all the evidence required. Ibid. But in all “ other cases ” where the complaint is not verified, and the action arises “ on contract for the recovery of money only,” the clerk is required to “ ascertain and assess the amount which the plaintiff is entitled to recover in the action from his examination under oath or other proof J and enter judgment for the amount so assessed.” This distinction in the kind of evidence and proof required by the last part of that subdivision, when the complaint is not verified, between cases where the “ action is on an instrument for the payment of money only,” and “ other cases ” ex contractu, to authorize the clerk to assess the damages, pretty clearly shows that where the summons is personally served, and the complaint is duly verified, the clerk may, on affidavit of default, enter judgment without proof, under the first part of that subdivision, in both classes of cases. It other words, that judgment may be entered by the clerk, on such default, in all “ actions arising on contract for the recovery of money only,” whenever the summons is personally served or the defendant has appeared, and the complaint is verified. Thus it has been held that an action for the value of medicines and medical services furnished and rendered at defendant’s request is an action upon contract for the recovery of money only, within the meaning of that subdivision. Egan v. Sengpiel, 46 Wis., 704. With the decisions of this court referred to, it becomes unneces [92] sary to consult the decisions of other courts, in order to ascertain the meaning' of this statute. We are clearly of the opinion that the clerk had jurisdiction, and hence the judgment entered by him was not a nullity. 3. This being so, it becomes unnecessary to consider whether it was regular to take judgment by default, when there was a demurrer pending to the original complaint, or whether the defendant was entitled to such judgment without notice, or whether there were any other irregularities; for, assuming that the practice was irregular, still, the defendant’s remedy was not by motion to set aside the judgment, but by writ of error or appeal. It is well settled that a valid judgment cannot be set aside for mere irregularities after the term at which it was entered, nor after the next term where it is entered by the clerk in vacation. Egan v. Sengpiel, supra; Breed v. Ketchum, 51 Wis., 164. A judgment upon default, entered without notice, in a case where the defendant is entitled to notice, is not void for that reason. Ibid. Where the court has jurisdiction of the parties and the subject matter, a judgment entered as for a default, before the time for answering has expired, is irregular but not void. Salter v. Hilgen, 40 Wis., 363. 4. There can be no question but what the judgment was perfected, except as to costs, November 16, 1880. No attempt was made to open the judgment until more than eighteen months after the knowledge of its entry had been brought home to the attorneys for the defendant, and more than three months after the judgment had been assigned to a third party, and a portion of it collected and paid to the assignee, and the balance voluntarily paid to the clerk of the court, and by him paid to the assignee; and then the motion was not actually disposed of until nearly two years after the entry of the judgment. If the defendant wished to be relieved from the judgment through the mistake, inadvertence, surprise, or excusable neglect of any of its officers, [93] agents, or attorneys, the application should have been made within one year after notice of the entiy thereof. Sec. 2832, E. S. Such notice does not mean written notice, but simply knowledge of the judgment. Butler v. Mitchell, 17 Wis., 58; Knox v. Clifford, 41 Wis., 458. This judgment was known to the defendant’s attorneys, November 23, 1880. This being the fact, and such being the law, it is plain that the court was powerless, under that statute, to relieve the defendant after the year. Knox v. Clifford, supra; Whitney v. Karner, 44 Wis., 563; McKnight v. Livingston, 46 Wis., 356; Breed v. Ketchum, supra. Besides, it may be very doubtful whether the proposed answer tendered a meritorious defense. The mere fact that the costs were never taxed, and were finally waived by the plaintiff’s attorneys, did not prevent the running of the year mentioned in that section of the statute as to the judgment for damages. The privilege of securing the relief provided in that section cannot be indefinitely postponed by the mere failure to tax the costs, nor renewed by the mere waiver of costs. By the Court.— The order of the circuit court is affirmed.