Wait v. Sherman

Lvox, J. One of the motion papers is an affidavit made by the defendant, which purports to contain copies of the summons, return, docket entries, and judgment in the action before the justice. The claim of defendant is that he did not appear in the action, and that the return of service of the summons failed to give the justice jurisdiction to enter judgment against him. There is no other evidence of the proceedings before the justice. In any view of the case, this evidence is entirely insufficient to authorize the circuit court to adjudicate that the judgment is void. The granting of the motion would have been such an adjudication. Before the court could properly do so, it should have before it the record of the proceedings in the action before the justice, or, at least, a copy thereof, duly certified by the justice having the legal custody of the original. It would be very dangerous practice to allow the solemn judgments of courts, entered in due form, to be set aside and held for naught on the mere affidavit of a party that something occurred in the action before judgment which would, if true, invalidate it. On the hearing of the motion several affidavits were read on behalf of the plaintiff in opposition thereto. These show conclusively that the summons was served as required [121] by law. Under the decisions of this court the return is amendable. Northrup v. Shephard, 23 Wis. 513. They also show, by an overwhelming preponderance of proof, that the judgment is just and equitable. With such proof in the record the defendant must be held to very strict rules if he would avoid the judgment. The validity of the judgment is assailed and defended by affidavits only — the record being absent — and the defense is more than sufficient to repel the attack. We think the circuit court .properly denied the motion. By the Court.— Order affirmed.