Rollins v. Kahn

OetoN, T. This appeal is from an order denying the motion of the -defendant to set aside the judgment. The motion was predicated upon the following grounds: First, that at the time of the entry and docketing of said judgment there was a stay of proceedings on the part of the plaintiffs in said action, which stay had not then been vacated or modified; second, because no notice of application for judgment was served on the attorneys for the defendant; third, because no notice of taxation of the costs was ever served -on the attorneys for said defendant; fourth, because the said judgment is founded on a demand, a part of which was due and a part of which was not due at the time -of the commencement of the action, and judgment could only have been rendered for the amount due. These [661] are. the only grounds to be considered on the. appeal for the reversal of the order. This was a proceeding by attachment as for a debt not due, under ch. 223, Laws of 1880. There may be an imperfection in this act, so far as to what shall be done with the property attached before the debt becomes due, as intimated in Rice v. Jerenson, 54 Wis. 248; but there does not seem to be any defect as to the rendition of the judgment in the action after the debt becomes due. The language is, “and the same proceedings in the action shall be had as in actions upon matured demands.” A personal action is- commenced with the attachment the same as when the demand has matured, or else there is no meaning in the above language. A summons was served and a complaint filed as in personal actions, and in this case there was no answer to the complaint. If no judgment ought to have been rendered, the defendants should have answered and set up a defense on the ground that the debt was not due. But in this case, when the attachment was levied and the summons and complaint served, a considerable part of the demands had matured. As to that part of the judgment there does not lie this objection; and, instead of setting the whole judgment aside because it was for too much, the motion should have been made to correct or modify it in this respect. But we think the judgment was properly entered for the whole amount of the demands, they having all matured before that time. This disposes of the fourth ground of the motion. As to the first ground, that the judgment was entered pending a stay of proceedings, it seems that the order denying the motion upon which the stay was allowed is dated the 11th day of May, the same day as the entry of judgment, but nunc pro tunc, as of the previous 27th day of April. The effect of the order was therefore to remove the stay on the last-mentioned day. An order nunc pro tunc is [662] where the delay is the act of the court, and is so entered so as not to prejudice the party in whose favor it is made. Even a judgment may be entered mine pro tunc, at common law, after the death of the defendant, on a verdict rendered before his death. 2 Tidd’s Pr. 932. Such an order is in the discretion of the court, presumably, when it had already decided the motion at that time, and delayed to enter the order until afterwards, or-had the matter under advisement, and afterwards so entered the order so that it might not prejudice the party in whose favor it was made. 2 Bouv. Law Dict. 247; Abb. Forms, 693. This being the nature of an order nunc pro tune, it is certainly as valid and effectual as any other order until it is reversed, set aside, or modified as to date. According to this order, then, there was, in contemplation of law, no motion pending, and no stay of proceedings, when the judgment was entered. The second and third grounds are that there was no notice for application for judgment or for taxation of costs. As to the costs, the defendant should have moved for a retaxation if there is any valid objection against them. But such trivial irregularities are not grounds for setting aside the judgment. Pirie v. Hughes, 43 Wis. 534; Bonnell v. Gray, 36 Wis. 581. There was no merit in the motion. The defendant 'does not deny the debt, or pretend- that he has any defense to the action. He was in default on failure to answer, and he does not ask for a new trial. He moves to set aside the judgment on the most technical irregularities. The court had jurisdiction to render the judgment, and it is just and equitable, and such errors or defects, not affecting the substantial rights of the defendant, should therefore be disregarded. Sec. 2829, R. S.; Schweitzer v. Connor, 57 Wis. 183; Wadleigh v. Marathon Co. Bank, 58 Wis. 552; Adams v. Myers, 61 Wis. 387. By the Court.— The order of the circuit court is affirmed.