Marshall v. Hart

Emmett, C. J". My the Court. Whether the judgment rendered against Randall on- the 17th of September, 1850, was authorized by the statute then in force, and if so, whether the lien thereof is taken away by subsequent legislation, are the important questions to be considered in this case. The judgment was by confession, under the statute of Wisconsin, then in force here, which authorized the entry of a judgment, upon a plea of confession, signed by an attorney of the court upon filing with the clerk a declaration, plea of confession, and a copy of the bond, contract, or other evidence of the demand for which judgment is confessed, together with the authority for confessing such judgment, which, however, was required to be in some proper instrument, distinct from that containing the bond, contract, or other evidence of the demand. Laws of Wisconsin Territory of 1844, page 105. TRandall, on the 9th of September, 1850, executed a bond to — 457 — Hart in the penal sum of $7000, conditioned for the payment of two acceptances, both dated August 31, 1847, one for $1,333.33, payable one year from date, the other for $1,666.67, payable two years from date, with interest, and at the same time he gave a warrant authorizing any attorney of any court of record to appear in his name and to receive a declaration for him in debt for the sum of $3,635.13, on a certain bond of that date, “ in the penal sum of $7,000, conditioned for the payment of $3,635.13, * * or on a mutuatus for the said sum of money borrowed by me [him] at the suit of Henry N. Hart, the obligee therein, * * file common bail, and confess the same action, or suffer judgment to pass against him by ml (Licit or otherwise,” etc. The warrant is according to the form in use in some of the States, a precedent for which is given in 2 Burrill 449, and authorizes the confession of a judgment for the amount due in an action, either directly on the bond, or for the money secured thereby, which he acknowledges to have borrowed. The term mutuahus, so far as we are able to learn, is descriptive of a declaration, or count for money borrowed. 2 Archibald's Prac. 17; Taylor's Law Glossary 323. The obligee chose the latter mode, declaring for $7,000, the penalty of the bond, and reciting that the Defendant had borrowed of the Plaintiff the sum of $3,635.13, as of the date of the bond. The bond and warrant of attorney, with a plea of confession, were filed, and judgment entered for the amount claimed to have been borrowed, being the exact amount of the several acceptances, with interest. It is now urged that there was no authority in the warrant to enter such a judgment, and it is alleged that there is an essential variance between the bond filed, and that recited in the warrant, because the bond is conditioned for the payment of two acceptances in favor of Pritchard, amounting to $3,000, while the warrant refers to a bond conditioned for the payment of $3,635.13, borrowed of Hart. ¥e are satisfied, however, that the bond referred to in the warrant, was the bond that was filed, and that the authority was substantially pursued. The instruments are between the same parties, both executed the same day, and doubtless had reference to the same transaction. The drafts which the said Randall had accepted and — 458 — became liable upon, and the payment of which the bond was intended to secure, though drawn in favor of Pritchard, and amounting at the date of the drawing to $3,000 only, had, as the bond recited, been endorsed by Pritchard, and at the date of the bond and warrant oí attorney, amounted, with the interest, to the exact sum for which judgment was authorized to be entered. We do not entertain a doubt that the warrant referred to the indebtedness secured by the bond; and as the judgment was taken in open court during a regular term, we will presume that all doubt, if any there existed, was removed, before the court suffered judgment to be entered. This judgment was suffered to remain upon the records of the court, without objection, until sometime in March, 1859, when the judgment creditor — no execution having been issued thereon within five years, — obtained leave of the court to issue an execution. This leave could only be granted after due notice to the Defendant. The judgment debtor afterwards moved to set aside the execution thus issued, but the motion was not granted. No other, or further proceedings were ever had to relieve against the j udgment, or correct any errors alleged in the proceedings, and the successor in interest of the judgment debtor, without an allegation of fraud in its rendition, orin any manner showing himself entitled to equitable relief, now asks that the j udgment should be declared a nullity on mere technical grounds. The judgment is not a nullity. At the worst, it is merely irregular, and is good against the party until set aside, or reversed by direct proceedings upon appeal, or writ of error. Or, if it was taken against him through his mistake, inadvertance, surprise, or excusable neglect, and he could have so made it to_appear to the court, he might have been relieved at any time within a year after notice of the judgment. The time for appeal, or writ of error, has long since passed, and there is no pretense that he is entitled to relief on the ground of mistake, inadvertance, surprise, or excusable neglect. There should be an end to litigation. The judgment debtor has permitted the time to pass within which he could appeal to the remedies provided by statute. He could have resisted on proper grounds, the issuing of the execution. He let that — 459 — opportunity pass, and moved afterwards to set the execution aside, on the same grounds, for which relief is now asked. He has certainly had his day in court, and has not sought to dis* turb the decision. The facts of the case would not call tor equitable interference on his behalf, and as his successor in interest, the present Plaintiff, can urge nothing more than has already been urged in behalf of the judgment debtor, we think the judgment should not be disturbed. The law in force at the time this judgment was rendered, made it a lien from the time of its rendition, on all the real property of the judgment debtor, in the county, which he then had or might thereafter acquire, and limited the time within which the execution could be issued thereon to two years, except by leave-of the court. In 1851, however, the legislature passed an “Act for revising and consolidating the general Statutes of the Territory,” wherein it is recited in the preamble that “ it is expedient that the general Statutes of the Territory should be consolidated and m'rangedm appropriate chapters, articles and sections, that omissions and defects therein should be supplied and amended, .and the whole should be rendered concise, plain and intelligible.” By this act the then existing Statutes were consolidated in one general law, omitting, however, such acts and parts of acts as the Legislature did not wish to retain, and supplying omissions, and making such other changes as seemed necessary, and by a general clause — Sec. 1, Chap. 137 — all former acts then in force, except those thereinafter particularly named, were repealed. This act made no alteration in regard to the lien of judgments, except to limit its duration to ten years, to make it commence from the time of docketing it in the county, instead of the date of its rendition, and to extend the time for issuing execution from two years to five years. But the Plaintiff here contends that the repeal of the old law, by the general clause before referred to, destroyed the lien which might otherwise have attached to the judgment, and that the saving clause found in section four of the last chapter of the act does not reach this case, because the judgment debtor not having acquired the property in question until after the repeal, there was nothing for the lien to attach to while the law was in existence. — 460 — Whether the unconditional repeal of a law, by which a judgment is made a lien on property, would have the effect of destroying such lien, it is not now necessary to decide, for we do not regard the act for revising and consolidating the general Statutes of the Territory as repealing unconditionally, any act or part of an act which is there retained or re-enacted. The object of this act, as its title imports, and as is clearly expressed in the preamble, was to furnish to the people of the Territory, in one plain, concise and intelligible act, all the laws then in existence, and to amend the same by striking out such acts or parts of acts, and adding such new provisions as our circumstances required, or were necessary to make the whole consistent with itself. Its effect was merely to amend the existing laws by repealing certain parts, and inserting or adding others, leaving that which was re-enacted as if it had never been disturbed. This all might have been done directly by amendments to the old Statutes, but the Legislature effected the object and avoided much confusion, by re-enacting wbafr they wished to retain, with such additional chapters and sections as they desired, and by a general clause repealing all former Statutes, not specially enumerated — evidently intending by the repeal, to do no more than repeal such acts and parts of acts, as were not re-enacted in the consolidated act, and expressly providing that all acts done, rights accrued or established, suits or proceedings had or commenced under the former laws, should remain as valid and effectual as if the provisions so repealed had remained in force. Sec. 4, Chap. 137. A similar question was presented for our consideration in Holcombe vs. Tracey, 2 Minn. 241; and we there held that the act of 1851 should not be treated as an original act, but as amendatory of, and to-be construed with reference to the former laws. As before remarked, the provisions of the old law making judgments a lien on after acquired real estate, was retained,, the lien, however, dating from the time of docketing the judgment. This judgment was docketed, substantially, according to the new law, although the docketing was not necessary to the lien according to the law -then in force. And can we reasonably suppose that the Legislature intended by this act to' — 461 — deprive existing judgments of their liens. "We think the saving clause before referred to, negatives any such idea, and that the most that could, in any event, be required of judgment creditors would be to comply with the new law by having their judgment docketed. We are of opinion that the repealing clause of the act -of 1851 affected only such parts of the old Statutes as were not retained in the new. That the lien of judgments then existing was not thereby destroyed; and were it otherwise, that the repeal would affect only such as were not docketed, and that the lien would again attach, by complying with the new law, from the time of the docketing. Judgment affirmed.