Reeves v. Kroll

Dodge, J. Respondent moves to- dismiss tbe appeal for defect in undertaking, for tbe reason, as be claims, tbat it does not secure both tbe costs and damages wbicb may be awarded against appellant on appeal not exceeding $250, as required by sec. 3052, Stats. (1898), and also tbe conditions of staying tbe order as prescribed by order of tbe court under sec. 3060, Stats. (1898). Tbis contention is based upon a misapprehension. Tbe undertaking is in tbe sum of $300, and tbe order of tbe court fixing tbe amount of undertaking-prescribes tbat total as tbe amount necessary to secure both costs and stay; tbus in practical effect adding $50 to tbe amount of tbe undertaking wbicb would be required by statute to merely render tbe appeal effective. Tbe undertaking; is in complete response to tbis order and satisfies it. Plence tbe motion to dismiss tbe appeal is overruled. Tbe judgment on cognovit, in tbe form rendered, was unauthorized either by law or by tbe power of attorney or by-tbe answer filed. While undoubtedly tbe statute, sec. 2896,, Stats. (1898), authorizes tbe entry of judgment on cognovit' before tbe debt is due when so authorized by tbe power of' attorney, yet tbat statute, in connection with subd. 7, sec. 2969, Stats. (1898), has been held to permit only such form of judgment as declares any immaturity wbicb may exist, to-tbe end tbat execution may issue and be enforced only for-the part due. Sloane v. Anderson, 57 Wis. 123, 15 N. W. 21; Reid v. Southworth, 71 Wis. 288, 36 N. W. 866. Such-being tbe only form of judgment authorized by law, a power-of attorney executed in Wisconsin to confess judgment before due must be construed to authorize only such judgment. Hence tbe present judgment was neither authorized by the-maker of tbe notes nor by tbe statute. Further than tbis, the-judgment was without authority because unsupported by the-form of affidavit which is required by sec. 2896, Stats. (1898). ' This affidavit is required to state what amount is-due and what amount is to become due. Sloane v. Anderson,. 199 supra. It may not be entirely certain under our authorities whether such defects in the procedure as these are jurisdictional so as to render the judgment a complete nullity, or are merely such errors within jurisdiction as may be cured by the release of errors and irregularities. Sloane v. Anderson, supra; Kahn v. Lesser, 97 Wis. 217, 221, 72 N. W. 739; Marshall & I. Bank v. Milwaukee W. Mills, 84 Wis. 23, 53 N. W. 1126; Horning v. K. Griesbach B. Co. 84 Wis. 71, 54 N. W. 105; F. Mayer B. & S. Co. v. Falk, 89 Wis. 216, 61 N. W. 562. We shall not, however, deem it necessary to resolve that question here. Although void, the court would not be bound to set the judgment aside upon motion, unless it appeared to be inequitable. Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322. Hence an application to set it aside in a measure always appeals to the equitable power and discretion of the court. If, however, it be conceded that this judgment has been set aside in the exercise of the power conferred by sec. 2832, Stats. (1898), to vacate judgments, and that the action must be controlled by the provisions of that section that the vacation shall be upon such terms as are just, we are not prepared to say that there has been any abuse of discretion in refusing to impose costs upon the defendant. The fact that the judgment was wrong and unauthorized and oppressive to the defendant, and all this by the fault of the plaintiff, so that it probably must have been reversed upon appeal, and 'that, too, at the cost of the plaintiff, was a sufficient reason if also inequitable to justify the trial court in setting it aside upon motion without requiring the payment of any costs by defendant to plaintiff. By the Court. — Order appealed from is affirmed.