Marshall & Ilsley Bank v. Milwaukee Worsted Mills

LtoN, C. J. The claim of the appellants to the fund in question rests upon the proposition that the judgment of the bank on which the execution was issued, by virtue of which the judgment debtor’s property was. seized and sold, was entered without authority of law and is absolutely null and void; or, if not absolutely null and void, that such judgment is fraudulent, and therefore void as against the appellants. It is undisputed that the bank was a bona fide creditor of the Hymans to the amount of their note; and there is no proof that the debtors or the bank intended, by means of such note and warrant of attorney, or in the subsequent proceedings thereon, to defraud the plaintiffs or any one else, but only intended to give and obtain a lawful preference over other creditors of the Hymans. Hence, if the [26] appellants can successfully question tbe validity of the judgment in favor of the bank, it is because the circuit court had no jurisdiction to render it. The jurisdiction to render the judgment is denied on the sole ground that the note was not due when the judgment was entered, and the warrant of attorney did not authorize the entry of such judgment until the note became due. The warrant of attorney authorizes a release of errors, and the answer interposed for the Hymans contains such release. The claim of the appellants is that the note, which by its terms is payable “ on demand and without grace after date,” did not become due until the day after its date, and hence that there was no lawful authority to enter up judgment upon it on the day of its date. This proposition was very ingeniously and forcibly argued by the learned counsel for appellants, but we do not find it necessary to determine it on this appeal. If it be assumed that the judgment of the bank was prematurely entered, the error does not go the jurisdiction of the court, but is an irregularity only, which may be waived by the judgment debtor, and which was so waived in this case by a duly authorized release of errors, which appears of record. That such error was an irregularity merely, not affecting the jurisdiction of the court to render the judgment, was held in Salter v. Hilgen, 40 Wis. 363. Although that was an action commenced by summons, yet the rule there held is just as applicable to the premature entry of a judgment on a warrant of attorney without summons. In either case it is the error of the court, for the judgments are rendered by the court in both cases. It is claimed that the appellants are in a better position to attack the judgment than is the judgment debtor. This may be true, if the judgment is attacked for the fraud of the parties thereto, to the intended injury of other creditors of the debtor. But where, as in the present case, the [27] attack is made on the ground of mere irregularity, such other creditors are in no better position than the judgment debtor, and neither can avoid the judgment unless the same is shown to be unjust or inequitable. Nothing of the kind is shown here. The cases in this court seem quite conclusive in support of this proposition. Brown v. Parker, 28 Wis. 21; Bonnell v. Gray, 36 Wis. 574; McCabe v. Sumner, 40 Wis. 386; Pirie v. Hughes, 43 Wis. 531; Rogers v. Cherrier, 75 Wis. 54. There is nothing in Sloane v. Anderson, 57 Wis. 123, or Reid v. Southworth, 71 Wis. 288, which necessarily conflicts with the above views. By the Court.— The order of the circuit court is affirmed.