Holmes v. Lewis , 2 Wis. 83 ( 1853 )

By the Gourt,

Ckawfok», J.

The defendants in error commenced an action of assumpsit on a promissory note, against the plaintiff in error, in the County Court of Racine county.

The defendant in the action filed a demurrer to the declaration, which, after argument, was overruled, and the defendant was, by order of the court, required to plead at or before noon of the Friday next ensuing the date of the order, which was made at the regular March term of the court, A. D. 1850. This was on Wednesday, the 6th day of March, and on the next day, and before the expiration of the time given to plead, the court adjourned for that term. On Friday, the 8th day of March, at 1 o’clock P. M., the plaintiffs’ attorney entered the default of the defendant, and directed the clerk to assess the damages of the plaintiffs. This was accordingly done by the clerk, who . entered final judgment against the defendant for four hundred and sixteen dollars and thirty-eight cents and costs, and a judgment record was filed on the 16th day of March, 1850. After the tjime of entering the default and final judgment, on the 8th day of March, at five o'clock P. M., the defendant, by his attorney, filed in the office of the clerk of the court, two pleas to the declaration. At a subsequent term, (in JSTo-.vember, 1850,) a motion was made by the defendant to- vacate and set aside the judgment, for reasons set ^0i‘^ ^11 arL affidavit made and filed by the defendant’s attorney. The attorney for the plaintiffs also made an¿[ f¡iec] aii affidavit in resistance of this motion, and a^er argument, the motion was denied by the court. The judgment is now removed to this court by writ of error.

After the defendant had failed to plead within the time allowed to him for that purpose by the court, it was the right of the plaintiffs to have a default entered ; but before proceeding to an assessment of damages, it was necessary that judgment interlocutory should be entered. A default is not such a judgment, but is more properly the reason for a judgment of that kind, and inasmuch as the assessment by the clerk is a statutory proceeding, the provisions of the statute must be complied with. We cannot find that any interlocntoiy judgment was entered in this case, and until that was done, a reference to the clerk to examine and report the amount to be recovered by the plaintiffs was improper.

Section 3, of chap. 101, of the Revised'Statutes, provides that when a suit is brought in a court of record upon any written obligation or contract, and the same is set forth in the declaration as the cause of action, if mterlocibtory judgment for the plaintiff be rendered by default, &c., the court shall direct the clerk thereof to examine, ascertain and report what sum the plaintiff ought to recover for his damages.

By the eighth section the clerk is required to report to the Gomt the sum by him ascertained to be due to the plaintiff; and, by the ninth section, the court is empowered to give judgment for the sum reported, or for such other sum as the court may ascertain to be due. It is evident from these provisions that before any proceedings "by the clerk in assessing damages, there must he a judicial determination that the charge in the declaration is true, and thereupon and because it is unknown to the court how much the plaintiff onght to recover, a reference to the clerk to compute, &c., is made, hut this reference is'not to he stated on the record; the assessment is set forth as made by the court. Vide Section 10.

The defendants in error insist, however, that the omission to enter a formal interlocutory judgment is cured hy the Statute of Amendments, (chap. 100, § Y,) as neither party has heen prejudiced hy such omission. Whether this is so or not, we do not deem it nfecéssary to decide at this time, because we think there is another, and, in our view, a fatal objection to this judgment. It appears that it was entered hy the clerk in vacation, or after the actual adjournment of the court for that term, and although hy one of the rules of that court the term, would continue for certain purposes until Saturday of the first week, yet for the purpose of rendering final judgments, the court must he in actual session, and it cannot, hy rule or otherwise, depute its jtidicial power to a clerk, to he exercised in vacation, in rendering final judgments. The clerk of a court of record may enter up final judgments in vacation, hut this is only in cases provided for hy section 13, of chapter 105 of the Rev. Stat.

We may remark, in conclusion; that the defendant had appeared and interposed a demurrer, and he was consequently entitled to notice of the assessment of damages under Rules 21 and 22 of the County Court of Racine county. ;

The judgment must he reversed,'and the cause remanded for further proceedings, according to law.