Remington v. Cummings , 5 Wis. 138 ( 1856 )

By the Court,

WhitoN, C. J.

Tbe authorities cited by the plaintiffs in error show conclusively that one partner cannot bind his copartner by a warrant of attorney under seal to confess a judgment, unless he is specially authorized. But in this case there is nothing in the record to show that the warrant of attorney was so executed. All that appears is, that the warrant of attorney is subscribed in the partnership name, but whether the signing was the act of one or both of the partners does not appear.

If, as is contended by the plaintiffs in error, the signing of the warrant of attorney was the unauthorized act -of one of the partners, the partner who did not sign should have made a motion in the Circuit Court to set aside the judgment as to him, founded upon affidavits showing the facts. But it may well be doubted, whether the circumstance that the partnership name is signed to the warrant of attorney is sufficient to establish the fact which is relied upon to reverse the judgment. Upon this subject we give no opinion, because we are all of opinion that the judgment should have been signed by a judge or court commissioner in order to be effectual. By the Eevised Statutes, all judgments were required to be so signed; and section 14 of chapter 102 of the Eevised Statutes provides that no judgment of this description shall be deemed valid, so as to authorize any proceedings thereon, until the record thereof shall have been signed and filed. The legislature (Sess. Laws 1851, chap. 197) has, since the Eevised Statutes went into effect, dispensed with the necessity of signing the record of judgment in all cases where the judgment is recovered in the ordinary mode, but upon looking at the act with care, we think the provision of the Eevised Statutes requiring judgments of this description to be signed in order to be valid, has not been changed. We must hold, therefore, that the judgment in this case is defective for the want of a compliance with the provision of the Eevised Statutes before alluded to.

This being our view of the law governing cases of this description, the only remaining question tobe considered is, whether there has been any judgment recovered so as to authorize the bringing of a writ of error.

Tbe statute above cited (Rev. Stat., chap. 102, § 14) provides ibat' no judgment shall be deemed valid so as to authorize any proceedings thereon until the record thereof shall have been signed and filed. We are disposed to regard the signing and filing as necessary in order to give the judgment any validity or force. It is not a-judgment in form, and we do not see how a writ of error brought to reverse it can be sustained.

We have held that a writ of error will lie to reverse a void judgment in cases where the court in which the judgment was recovered had no jurisdiction: McCaffrey vs. Nolan, 1 Wis. R. 361; Dykens vs. Munson, 2 Wis. R. 245. But in this case, a . matter of form made necessary by the statute is wanting. There is, therefore, strictly speaking, no judgment in form against the defendant, and we think that the writ of error must be dismissed.

Writ of error dismissed.