Comstock v. Boyle

WiNSlow, C. J. It was conceded by respondents that the judgment was erroneous and must be reversed because the answer contained neither affirmative defense nor counterclaim, but only a general denial, and in such case the proper judgment, if plaintiff fails to prove title, is a judgment of nonsuit. Weld v. Johnson Mfg. Co. 86 Wis. 549, 57 N. W. 378; Zander v. Valentine Blatz B. Co. 89 Wis. 164, 61N. W. 763; Keator v. Glaspie, 44 Minn. 448, 47 N. W. 52. But the appellant makes a much broader claim, to the effect that when he failed to appear at the trial he thereby deprived the court of all jurisdiction to render any judgment except a judgment of nonsuit, and therefore that the judgment actually rendered was not only erroneous but void. Erom this premise he argues that the trial court should have set aside the findings, even though the term had passed at which the action was tried and the judgment ordered. We are entirely unable to agree with this contention. Jurisdiction of actions of ejectment has been given to the circuit courts by the statute. Sec. 8, art. VII, Const.; secs. 2420, 3073 et seq. Stats. (1898). This is jurisdiction of the sub [616] ject matter. Wien the plaintiff properly commences such an action in the proper court and serves his summons on the defendant jurisdiction of the parties is obtained, and thus complete jurisdiction of both the subject matter and the parties is acquired by the court and the contentions of the parties may be heard and decided. Absence of a party from the trial cannot deprive the court of jurisdiction to proceed unless, indeed, there be some statutory provision to that effect. Such absence may affect the nature of the judgment which should properly be rendered, but if the court renders a wrong judgment such action is an error only — it is not an act without jurisdiction. Having jurisdiction of both the subject matter and the parties, the court has jurisdiction to render not only a right judgment but an erroneous judgment as well. The logic of the appellant’s argument leads inevitably to the conclusion that whenever a court errs it acts without jurisdiction — a conclusion which, of course, it is impossible to sustain. State ex rel. Fowler v. Circuit Court, 98 Wis. 143, 73 N. W. 788. If the judgment in question was in fact rendered during the Eebruary term, the court could not against objection set aside either the judgment or the findings on which it was based at a subsequent term merely because error had been committed. This principle of the common law has frequently been affirmed by this court. Ætna L. Ins. Co. v. McCormick, 20 Wis. 265; Scheer v. Keown, 34 Wis. 349; Fornette v. Carmichael, 38 Wis. 236; Challoner v. Howard, 41 Wis. 355; Whitney v. Karner, 44 Wis. 563; Egan v. Sengpiel, 46 Wis. 703, 1 N. W. 467; Gilbert-Arnold L. Co. v. O’Hare, 93 Wis. 194, 67 N. W. 38; Bassett v. Bassett, 99 Wis. 344, 74 N. W. 780; Dufur v. Home Inv. Co. 122 Wis. 470, 100 N. W. 831; My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540. Whether it could set the judgment aside by consent of the parties is a question con [617] cerning which there may be considerable doubt. 1 Freeman, Judgm. (4th ed.) § 96. Some decisions of this court seem to carry the idea that consent may give the court such power, but in none of them was the question raised, and we express no opinion upon it here as it is not presented. Baker v. Baker, 51 Wis. 538, 8 N. W. 289; Steinhofel v. C., M. & St. P. R. Co. 92 Wis. 123, 65 N. W. 852; Hogan v. La Crosse, 104 Wis. 106, 80 N. W. 105; Nelson v. Jacobs, 99 Wis. 547, 75 N. W. 406. The principle is also well settled in this state that if the court pronounces judgment from the bench, and all that remains to be done is the clerical duty of reducing the judgment to writing or entering the same, or both, the judicial act is complete. So far as the court is concerned, judgment has been rendered notwithstanding the fact that the clerical acts necessary to preserve the evidence of the judgment have not been performed. Baker v. Baker, 51 Wis. 538, 8 N. W. 289; Fulton v. State ex ret. Meiners, 103 Wis. 238, 79 N. W. 234; Findlay v. Knickerbocker Ice Co. 104 Wis. 375, 80 N. W. 436; Allen v. Voje, 114 Wis. 1, 89 N. W. 924; German Am. Bank v. Powell, 121 Wis. 575, 99 N. W. 222; Zahorka v. Geith, 129 Wis. 498, 109 N. W. 552. In the present case the court filed findings and ordered the entry of the judgment in accordance therewith. The entire judicial act was then performed. There only remained the purely clerical duty of reducing it to writing and entering it of record. If mistake was made in the entry, so that the judgment as entered did not accord with the judgment ordered, such mistake might be corrected even at a subsequent term, or relief might be granted under sec. 2832, Stats. (1898), but no change could be made after the trial term in the judgment actually ordered on the ground that it was erroneous. These considerations demonstrate that the trial court was [618] right in refusing to set aside the findings npon motion made returnable at a subsequent term.,' and necessitate affirmance of the order appealed from.' By the Oourt. — The order appealed from is affirmed without costs, and the judgment appealed from is reversed with costs, and the action is remanded for a new trial. Timlib, J., took no part*