State ex rel. Fuller v. Circuit Court for Waukesha County

BardeeN, J. One reason urged why the writ herein should be quashed is that the plaintiffs have an adequate remedy by appeal, under subd. 2, sec. 3069, Stats. 1898. What is said by the court in Ledebuhr v. Grand Grove W. O. D. 97 Wis. [79] 341, is a sufficient answer to that contention. The order is not appealable under subd. 3, because no application was made to set aside the defendant’s default, and no new trial was granted. There being no adequate remedy in this direction open to the parties, there is no perceivable reason why the action of the circuit court may not be reviewed in this proceeding, if it be determined that it proceeded without jurisdiction or authority. We need not enter into any discussion of the power of this court to review the action of the court below in a proper case. That has been settled in a long line of cases mentioned in State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591. The foreclosure judgment that was set aside was entered September 2, 1898. The term at which it was entered expired on December 5, 1898. The order vacating the judgment was made January 24, 1900, more than one year after the term had ended. Sec. 3187, Stats. 1898, requires that a notice of lis pendens, in an action to foreclose a mortgage, shall be filed in the office of the register of deeds of the proper county, “ twenty days before judgment.” In Manning v. McClurg, 14 Wis. 350, it was held that the omission to file such notice was an irregularity sufficient to cause a reversal of the judgment, but did not render it void. Such, also, would be the effect on a judgment entered before the notice had been on file for the term required by the statute. In McBride v. Wright, 75 Wis. 306, the judgment wras entered without proof of the filing of the notice. At a subsequent term, and nearly a year after the judgment was •entered, the defendant moved to vacate the judgment, and appealed to this court from the order denying such motion. The rule in Manning v. McClurg was affirmed, and the court further said that, the application to vacate having been made at a term subsequent to that at which the judgment was rendered, the court had no power to vacate it. Again, in Huntington v. Meyer, 92 Wis. 557, it was held that, although [80] such notice was not filed, the court bad jurisdiction to enter judgment, and it could not be treated as a nullity. It was irregular, but not void. The law was early announced by this court to be that, as to all matters on which the mind of the court did. act, or is presumed from the record to have acted, in the rendition of the judgment, it has no power to alter or change at a subsequent term. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265. Later cases on the same subject and to the same effect are noted in Milwaukee M. L. & B. Soc. v. Jagodzinski, 84 Wis. 35; Day v. Mertlock, 87 Wis. 577; Bassett v. Bassett, 99 Wis. 344. See, also, Packard v. Kinzie Ave. H. Co. 105 Wis. 323, in which the discussion as to what mistakes or errors may be corrected by the court at a subsequent term is quite pertinent to the contention of the defendant in this case. Now, if it be conceded that the notice of lis pendens in this case had not been on file for the period of twenty days before judgment was entered (a question we do not decide), it is evident, from the authorities cited, that the court was absolutely without power or authority to vacate or set aside its judgment at a subsequent term. The judgment was simply irregular. If there was error in it, it was error committed by the court. After the term expired no power existed in the court to correct it. Counsel for defendant refer us to the case of Gile v. Colby, 92 Wis. 620, as furnishing some justification for the course they pursued. It is true that the writer of the opinion in that ease suggests that it would be better practice to have made application to the trial court for the correction of the error before taking an appeal. In view of the fact that the power of the court to disturb judgments at a subsequent term had been denied in so many cases, they ought not to have been misled by the inadvertent suggestion contained in that cáse, for it is no more than a suggestion. It is perfectly evident that the writer did not have in mind the disability under which the court labors [81] after the term has ended as to such matters, and that there was no intention of overturning a rule of law so firmly established as the one in question. By the Court.— The order of the circuit court setting aside the foreclosure sale and vacating the judgment is reversed.