F. Mayer Boot & Shoe Co. v. Falk

NbwmaN, J. • No doubt, the question whether the affidavit was sufficient to authorize the entry of judgment was a question for judicial determination; and although it was to be determined by a court commissioner, yet for all purposes of review it is to be deemed to have been determined by the court. It cannot be attacked in a collateral action, but only in a direct proceeding. Frankfurth v. Anderson, 61 Wis. 107. It seems to be well settled that even if the affidavit which is attached to the complaint on which judgment is confessed, under sec. 2896, R. S., is defective and insufficient under that section, yet the judgment is not void, 'but only voidable, and that in the absence of equities on the part of the debtor it will not even be set aside on motion, and that creditors are in no better position to take advantage of the error than is the debtor himself. Rogers v. Cherrier, 75 Wis. 54; Marshall & Ilsley Bank v. Milwaukee Worsted Mills, 84 Wis. 23; Horning v. E. Griesbach Brewing Co. 84 Wis. 71. These decisions seem to cover amply all the questions in the case. By the Court.— The order of the superior court of Milwaukee county is affirmed.