
    Dufur, Respondent, vs. Ashland County, Appellant.
    
      October 26
    
    
      November 13, 1894.
    
    
      Judgment by default: Premature entry: Vacating.
    
    An order sustaining a demurrer to a counterclaim gave leave to amend the answer within ten days after service of notice of the entry of said ordex-. No such notice was served, but, the answer not having been amended, judgment was taken against the defendant as by default Held, that defendant was not in default and that, upon an application made at the same term, such judgxnent should have been vacated as a matter of right
    APPEAL from the Circuit Court for Ashland County.
    This action was commenced June 17, 1893, to recover upon six several county orders issued by the defendant, and which had been assigned by the several payees thereof to the plaintiff. ' Each order is alleged in the complaint as a separate cause of action, and their aggregate amount is $221.38. The fifth cause of actión is upon an order for $19.75 issued by the defendant to Edward Fenelly, August 2, 1892, and assigned to the plaintiff.
    The defendant, by way of a counterclaim, alleged, in effect, that said Fenelly was county clerk of said county from January 2, 1891, to December 31, 1892; that during said time certain moneys came into his hands as such clerk by virtue of his office, to the amount of $16,163.49; that he bad converted the same to bis own use, and refused to pay the same to said county on demand, and was therefore indebted to said county thereon,— and demanded judgment against the plaintiff that the fifth cause of action be dismissed, and for costs. No defense was made to any of the other orders. The plaintiff demurred to said counterclaim on the ground that it does not state facts sufficient to constitute a cause of action or defense.
    Upon the hearing of said demurrer, it was, by an order made November 20, 1893, sustained, with leave to amend the answer within ten days from service of notice of entry of said order, on payment of $10 costs. A copy of said order was served on the defendant’s attorney, November 22, 1893. It appearing to the court, December 22, 1893, that no amended or further answer or demurrer had been' served on the plaintiff’s attorney, it was, on motion of the plaintiff’s attorney, adjudged that the plaintiff have and recover of the defendant the sum of $221.38 damages, together with the further sum of $33 for costs and disbursements, amounting in all to the sum of $254.38.
    Upon the affidavit of the defendant’s attorney herein, to the effect that no notice of the entry of the said order was ever served upon the defendant or its attorney, and upon an order to show cause, at the same term of said court at which said judgment was entered, why said judgment so entered as by default should not be vacated and set aside, it was ordered by the trial court that said motion be, and the same was thereby, denied, with $5 costs. From this last order the defendant appeals.
    The cause was submitted for the appellant on the brief of 12. Sleight, and for the respondent on that of Sanborn, Dufur & Anderson.
    
    To the point that a judgment irregularly obtained should not be vacated unless some defense was shown to exist, counsel for the respondent cited Ilowey v. Clifford, 42 "Wis. 561; Bonnell v. Gray, 36 id. 574; Levy v. Goldberg, 40 id. 308; Seymour v. Chippewa Go. id. 62; Rollins v. Kalm, 66 id. 658; Salter v. Hilgen, 40 id. 363.
   Cassoday, J.

Undoubtedly, trial courts have control of their own judgments during the term at which they are entered, and during such term may set them aside for irregularities merely. As indicated in the foregoing statement, the application to vacate and set aside the judgment was made and denied at the same term of the court at which it was entered.

By the express terms of the order sustaining the demurrer, the defendant* could not be put in default except by ten days’ notice of the entry of said order. The rule of court required the cleric of the trial court to enter a brief statement of all applications to the court for orders in his minute book, with the action of the court thereon,” and provides that no such order shall be operative unless such statement shall be then and there so entered.” Circuit Court Rule IY, sec. 9. It is undisputed that no such notice of any such entry of that order was ever given, and it does not appear that any such entry was ever made. If it was not made, then, under the rule, it would seem the order was inoperative. The judgment was therefore so entered, not only without any notice to the defendant’s attorney, but before the defendant was in default. This was improper. Knowles v. Fritz, 58 Wis. 216; Reichert v. Lonsberg, 87 Wis. 543. The application to vacate and set aside the judgment was promptly made at the same term, and should have been granted as a matter of right. It is unlike an application after the term and as a matter of favor, under sec. 2832, R. S.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.  