Reiley v. Johnston , 22 Wis. 279 ( 1867 )

Colb, J.

It is insisted that the judgment mentioned in the pleadings was void, for the reason that no affidavit was made and annexed to the complaint, stating the facts constituting the liability of the judgment debtor, and that the sum confessed did not exceed the amount of such liahility. It appears that this judgment was in favor of Alexander H. Johnston, as a security for the amount due and to become due the firm of Alexander H. Johnston & Sons, upon accounts and dealings between that firm and the plaintiff. It is alleged in the complaint, that judgment upon the note and warrant of attorney was rendered on the 5th day of March, 1862, for the aggregate sum of $3,036, “in favor of said Alexander H. Johnston as plaintiff, and against this plaintiff as defendant, and upon an affidavit of him, the said Alexander H. Johnston, that the sum of $3,005 was due to him upon said note.” In a subsequent part of the complaint, it is alleged, “upon information and belief, that neither the plaintiff in the case in which said judgment was rendered, nor any one in his behalf, made or annexed to the complaint in that case, an affidavit stating concisely the facts constituting the defendants’ liability upon the said note, or attempting to state such, facts, or showing, or attempting to show, that the sum confessed did not exceed such liability.” Now, even if we assume that the judgment debtor has the right to set aside a judgment rendered on a warrant of attorney, when the statement of indebtedness made by the plaintiff is imperfect, should he be permitted to do so upon allegations of this nature ? It will be observed that it is not positively alleged that the statement is insufficient, although it is obvious the party had the means of knowledge within his reach to have so alleged, if it was the fact. The statement was a matter of record; and if insufficient, the plaintiff in this suit could have positively stated wherein it was imperfect, and not have alleged it upon mere information and belief. Besides, if the statement was defective, this did not render the judgment void as between the parties thereto. “ As to third persons whose rights have attached by a judgment, or by purchase of, or a lien on, property affected by the' confessed or defective judgment,” it might perhaps be set aside for that reason. But the judgment would be good as between the parties though the statement on which it is founded does not specifically state the facts out of which the indebtedness arose. Miller v. Earle, 24 N. Y., 110; Neusbaum v. Keim, id., 325; Hopkins v. Nelson, id., 518. It is not pretended that Alexander II. Johnston was guilty of any fraud or mistake in entering up the judgment; although it is alleged that at the time the same was entered up, the sum of |3,036 was not due him. Precisely how much is due upon the judgment, the plaintiff does not state. In one place in the complaint it is alleged,' on information and belief, that there is not equitably due thereon a sum exceeding nine hundred dollars, if anything. In another part of the complaint it is alleged, likewise on information and belief, that the indebtedness due from the plaintiff to the firm of Alexander H. Johnston & Sons at the time of the death of Alexander H., did not exceed the sum of $1,000. "While, in the affidavit filed by the plaintiff on the hearing of the motion to dissolve the injunction, he stated that on a full and correct settlement of the accounts between him and the firm, the amount due the firm would he reduced to the sum of $1,341.84. Prom this it will be seen that the plaintiff admits that there is nine hundred or a thousand dollars at least due on the judgment which he asks to have set aside. It appears that a levy has been made under an execution issued upon the judgment, upon twelve hundred dollars worth of personal property; and the object of this suit is to restrain by injunction the sale of this property on the execution, to set aside the judgment, and to have an account taken of the true amount due from him to the firm of A. H. Johnston & Sons. The complaint, considered by itself, affords no ground for restraining the sale on the execution. Eor, as before stated, the plaintiff admits an indebtedness on the judgment of $900 of $1,000, and a levy upon $1,200 worth of personal property is not excessive to raise that amount. The material allegations are made upon information andbelief. 19 Wis., 677. But the defendant Hugh L. Johnston, as executor of the will of Alexander H. Johnston, and as the surviving partner of the firm of Alexander H. Johnston '& Sons, has filed an answer under oath, in which the equities of the complaint are fully denied. He avers that at the time of the death of Alexander H., the indebtedness of the plaintiff to the firm amounted to the sum of $6,000, and now amounts to at least that sum. He also avers that at the time the judgment was rendered, there was justly due thereon the amount for which judgment was entered up. In view of these matters stated in the answer, as well as on account of the admissions of the complaint and the form of the allegations therein, we think the preliminary injunction was properly dissolved. By the concessions of the plaintiff, $900 or $1,000 are due upon the judgment, and the defendant is entitled to collect that amount at least. A levy upon $1,200 personal property is not an excessive levy to collect that sum.

By the Court. — The order of the circuit court dissolving the injunction is affirmed.