Dauphin v. Landrigan

Rosenberry, J. The principal question presented upon this appeal is: Was there such an appearance by the defendant by the making of the stipulation of May 25, 1922, as to entitle the defendant to notice of application for judgment under the statute? Sec. 2891, Stats. 1923, provides upon what conditions judgment may be had if the defendant has failed to answer the complaint (1) in actions on contract; (2) in other actions. While an action for breach of promise to marry is in the form of an action on contract, it is and always has been regarded as an action in tort so far as the question of damages is concerned. Thorn v. Knapp, 42 N. Y. 474; Johnson v. Levy, 118 La. 447, 43 South. 46, 9 L. R. A. n. s. 1020. So that the provisions of sub. (2) of sec. 2891 were applicable to this action.- It provides: “If the defendant shall have appeared in the action he shall be entitled to eight days’ notice of such application for judgment.” It appears without dispute in this action that the defendant was duly and properly served and subject to the jurisdiction of the circuit court. We are not here called [636] upon to decide whether or not there was such an appearance as would give the court jurisdiction in the absence of service or constitute a waiver, of defective service, but to determine what constitutes appearance so as to thereafter entitle the party to notice of application for judgment. Appearance in the action and pleading in the action are distinct acts. While the filing of an answer may operate as an appearance, appearing and pleading nevertheless remain two distinct things. Colby v. Knapp, 13 N. H. 175; Groves v. County Court, 42 W. Va. 587, 26 S. E. 460. An appearance is defined as the act by which a person against whom suit has been commenced submits himself to the jurisdiction of the court. The stipulation entered into between plaintiff’s attorneys and the defendant, because in accordance with the provisions of Rule V, sec. 2, it was reduced to writing and subscribed by the party against whom the same shall be alleged, or by his attorney, was a valid stipulation. It is argued here that the making of this stipulation constituted an appearance on the part of the defendant so that the entry of judgment without notice of application therefor to him was error. If the stipulation were to do anything but “to appear” there would be great force in the argument. It cannot logically be said, however, that the making of a stipulation to do a thing is the doing of the very thing that the stipulation says may be done at a later time. If the stipulation that the defendant might have until the 1st day of November to appear constituted an appearance, then the stipulation was not a stipulation to appear because the appearance had already been made. It must be held that the making of the stipulation did not constitute an appearance by the defendant. It is also urged that the complaint states no cause of action. The material allegations of the complaint are as follows: “That on or about the 19th day of October, 1919, and at various times thereafter, at Marinette, Wisconsin, in con [637] sideration that the plaintiff, who was then unmarried, would marry the defendant on request, the defendant promised to marry the plaintiff within a reasonable time. “That plaintiff, relying on said promise, has always since remained and now is ready and willing to marry the defendant. “That the defendant has failed and refused to marry the .plaintiff although a reasonable time elapsed before this action and although she frequently requested him so to do.” It is argued that this states no contract and therefore the complaint states no cause of action. We think it clear that the complaint must be construed to mean that plaintiff promised and agreed to marry the defendant upon request and that he agreed to make the request within a reasonable time; that such reasonable time has elapsed and the defendant refuses to perform the contract. It is further argued that under sec. 2894, which provides, “Judgment upon trial of an issue of fact by the court or by referees or upon failure to answer (except where the clerk is authorized to enter the same by this chapter) must be entered by the clerk upon the direction of the court,” the judge had no power to sign the judgment. This section limits the authority of the clerk and does not deprive the court itself of power to enter its own judgments, so that the judgment was lawfully entered in this case. By the Court. — Judgment affirmed.