Jilsun v. Stebbins , 41 Wis. 235 ( 1876 )

Cole, J.

It appears to us that no good reason is shown for granting the relief ashed in this case. It is not claimed that there was any fraud practiced, or undue advantage taken, in obtaining the judgment. Indeed the justice of the judgment is not really called in question or impeached. A feeble it-tempt was made to show that the judgment had been paid; but the proof is entirely insufficient to sustain that defense. The declarations of Parsons, made in 1872, in relation to the payment of the judgment, were clearly inadmissible. The other evidence offered to establish the fact of payment is so very weak and unsatisfactory that it will surely warrant no inference that the judgment has been paid. There is no fact shown which tends to impeach the equity and justice of the judgment as originally rendered, or which proves that it would be against conscience to enforce it. It is true, it is alleged in the complaint that the judgment was void because there was no proper service of the summons and complaint in the action upon the deceased, Thomas D. Parsons, and that therefore the court failed to acquire jurisdiction over him. The record shows that Parsons admitted] in writing personal service of a copy of the summons and complaint upon him February 8, 1865; and the genuineness of his signature is not denied by the plaintiff; indeed it was clearly proven by tbe witness Head on tlie trial. "Whether correct practice requires any other proof of service than such a written admission by the defendant in the action, is a point we shall not determine; for we are clearly of the opinion that the judgment was not void for want of it, even if necessary. At most it would be a mere irregularity, and would not affect the jurisdiction of the court. The same remarks apply to the alleged defects in the execution. Mariner v. Coon, 16 Wis., 466.

The ground upon which courts of equity interfere to give relief against a judgment is stated in Stowell v. Eldred, 26 Wis., 604, and Barber v. Rukeyser, 39 id., 590; and it may be safely affirmed that there is not a fact established in this case which would bring it within the doctrine there laid down.

By the Court. — The judgment of the circuit court is affirmed.