Townsend v. Seelig

BakdeeN, J. A transcript of a judgment rendered in justice’s court for more than $10, exclusive of costs, may be [33] filed and docketed in tbe office of tbe clerk of tbe circuit court, and from tbe time of sncb filing shall be deemed tbe judgment of tbe circuit' court, and be under tbe control of said' court, and carried into effect tbe same as tbe judgments thereof. Sec. 2900, Stats. 1898. Such a transcript was filed and docketed against tbe property, of tbe garnishee defendant. He attacked it by motion on tbe ground that tbe proceedings before tbe justice showed that be bad no power or jurisdiction to enter judgment against him. Tbe court below made an order striking such transcript from tbe files and striking out all entries relating to tbe same from the clerk’s docket. Tbe power of tbe circuit court to deal with void judgments is plenary, and may be exercised on motion. Weatherbee v. Weatherbee, 20 Wis. 499; Scheer v. Keown, 34 Wis. 349; Thomas v. West, 59 Wis. 103. One of'the principal grounds for sustaining tbe demurrer in tbe last case mentioned was that tbe plaintiff bad an adequate remedy at law by a motion to vacate tbe docket entries and strike tbe transcript from tbe files of tbe court. See Purcell v. Kleaver, 98 Wis. 102. In Steckmesser v. Graham, 10 Wis. 37, tbe power of tbe court to deal with transcripts and vacate entries made upon them was admitted to exist, to be exercised when tbe circumstances required it. This power is usually exercised on motion in tbe proper case, and is quite as efficacious, and. much less expensive, iban a formal suit in equity. In this case tbe court struck put tbe transcript in question on tbe theory that tbe proceedings upon which it was based were bét-yond tbe power of tbe justice under tbe circumstances stated. Sec. 3781; Stats. 1898, says that a garnishee shall be entitled to receive tbe same fees for travel and attendance as a witness, “and he shall not be bound to appear or answer unless bis fees for travel and one. day’s attendance shall first 'be paid.” Tbe authority of tbe justice to enter judgment personally against tbe garnishee is dependent upon tbe statute, [34] which, says he may do so if he fails to appear, or appearing, fails to make full answer touching his liability. See. 3128, Stats. 1898. Construing the two statutes^ together, it is quite evident that thé justice can have no power to enter personal judgment against the garnishee as for default, unless he has before him proof that all the conditions precedent to enforce attendance have been complied with. In other words, if a garnishee fails to appear, the justice looks to see, and his record must show service of the summons and payment of fees before he can lawfully enter a personal judgment against him by default. Unless these essential requisites appear, his power to proceed does not exist, and the judgment entered has no legal basis to rest upon. See Walsh v. Timlin, 98 Wis. 333. The record before us clearly shows that the judgment entered by the justice was without legal authority, and wholly insufficient to sustain the transcript attacked. Such being the case, the fact that the court vacated the docket entries in the clerk’s office in addition to the striking of the transcript from the record works no prejudice to the appellant. The other points made by appellant are not deemed of sufficient importance to require discussion. By the Gowrt. — The order is affirmed.