McBride v. Wright , 75 Wis. 306 ( 1889 )

Lyon, J.

Assuming that the plaintiff failed to furnish proof before the judgment was entered that the notice of lis pendens was filed in due time in the proper office in La Faji-ette county, such failure does not render the judgment void, but is only an irregularity. If attacked collaterally, the judgment would be held valid. Manning v. McClurg, 14 Wis. 350. If there is error in the judgment, it is error committed by the court. In such a case it was held in Ætna L. Ins. Co. v. McCormick, 20 Wis. 265, that the trial court has no power to vacate the judgment for such an error at a term subsequent to that at which the same was entered. This rule has been applied and enforced by this court in numerous cases, and is the settled law in this state and'elsewhere. The motion to vacate the judgment herein having been made at a subsequent term, it came too late, and the court was powerless to grant it.

Counsel claims to have followed the practice indicated in Spraggon v. McGreer, 14 Wis. 439, but the point was not there made, and there is nothing in that case which sanctions the making of such a motion at a subsequent term. Because the motion wag too late, the court properly denied it, if for no other reason.

We are further of the opinion that the motion was properly denied on the merits. The record being silent on the subject, the legal presumption is that proof was made to the court before judgment that notice of lis pendens was duty filed. in La Fayette county. Webb v. Meloy, 32 Wis. 319; Sage v. McLaughlin, 34 Wis. 550. The only proof offered to rebut such presumption is the affidavit of appellant that she believes no such proof was made. Judgment having gone against her by default, presumably she was not present and heard nothing of what transpired in court before judgment. The affidavit is entirety insufficient to rebut the legal presumption of regularity. Moreover, had it been satisfactorily established that no such proof was made before judgment, it is difficult to perceive how the appellant could have been injured by the denial of her motion, when it is shown that the proper notice of Us pendens was in fact filed in due time in La Fayette county. We think the proof that it was so filed is a perfect answer to the motion to vacate the judgment, no merits being shown.

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