
    McCabe vs. Sumner and another.
    Vacating- Judgment. (1) When service of verified answer not required. (2-7) Judgments by Confession: Practice in vacating them.
    
    ;Statutes, CONSTRUCTION OF. (&) Literal compliance not always sufficient.
    
    1. Where a' motion to sot aside a Judgment is founded on irregularities in entering it up, service of a verified answer is not required as a condition of relief. Levy v. Goldberg, ante, 308, distinguished.
    '2. The rule that courts have an equitable supervision over judgments entered upon warrants of attorney, and that the burden is on the defendant to show some wrong or injustice in the judgment, appears -to rest on the release of errors usually found in such warrants, and not found in this vase.
    
      3. While there are mere irregularities for which, under sec. 40, ch. 125, R. S., judgments upon warrants of attorney should not be disturbed, yet courts will look closely into them to see that no substantial injustice has been done defendants.
    4. A reasonable effect must be given to the provisions of a statute, according to its object; and a mere literal compliance is not always sufficient.
    5. The statute for the entry of judgment on warrant of attorney, which de- , dares that “the plaintiff, or some one in his behalf, shall make and annex to the complaint an affidavit stating ” certain facts, requires an affidavit of one knowing the facts; and when made by a stranger, it must state the affiant’s means of knowledge; and, it seems, should also dis-dose why it is not made by plaintiff. Blaikie v. Griswold, 10 Wis., 293, so far as in conflict with this decision, overruled.
    6. In sudi a case, the affidavit, made by the attorney, stated as the amount due, the whole amount appearing to be due on the face of the paper in suit, but did not show the affiant’s means of knowledge; and it appears from defendant’s uncontradicted affidavit, that a large proportion of that amount had been previously paid. Held, that the judgment, being made to appear oppressive as well as irregular, should be set aside upon motion seasonably made.
    7. A motion to vacate a judgment entered on cognovit is in time if made at the same term. 2Etna Ins. Co. v. McCormick, 20 Wis., 265.
    APPEAL from the Comity Court of Wvnnebago County.
    Plaintiff filed a formal complaint, setting forth a note executed by defendants, with a warrant of attorney, dated August 23, 1873; a formal answer in behalf of defendants, confessing judgment; and an affidavit of the attorney by whom the answer was filed, stating merely that the amount due upon the note was $226.67, with interest at ten per cent, from its date, with ten per cent, attorney’s fees to be taxed as costs.
    Judgmen't was entered for the amount claimed by the affidavit, with $25 attorney’s fees. Defendants, at the same term, moved to set aside the judgment, because, among other reasons, it was for a sum in excess of that due; and because no affidavit of the amount due was made as required by law.
    In support of the motion, the affidavit of the defendant Sumner was filed, stating, among other things, “ that on the 15th of October, 1875, in behalf of said defendants, he paid upon said instrument tbe sum of $215.25 at tbe First National Bank of Osbkosb, -where said note, by its terms, was made payable; that defendants have, ever since said last mentioned day, left tbe said sum in said bank, as such payment, and tbe same is still in tbe hands of said bank for tbe use of tbe plaintiff or of the bolder of said instrument, if not already appropriated by said bolder; and that, before tbe entry of said pretended judgment, tbe amount payable by tbe terms of said note bad been paid, except $57.00 and interest thereon from October 15, 1874.”
    Plaintiff offered no counter evidence upon tbe bearing of tbe motion. Motion denied; and defendants apj)ealed.
    The cause was submitted by both sides on briefs.
    
      Jackson & Halsey, for appellants,
    argued, among other things, that courts have control over judgments entered upon warrants of attorney, and should protect the defendant, upon motion, from any mistake, imposition, or fraud which may intervene in entering judgment. Jones v. Keyes, 16 Wis., 562. Tbe judgment is required to be entered in a precise form. R. S., cb. 140, secs. 12-16. Tbe proceeding must conform strictly to tbe statute, or it is of no avail. Plant v. Holtzman, 4 Cranch O. 0., 441. Tbe affidavit required by tbe statute is not an idle ceremony, but must be made by tbe plaintiff, or by some person having knowledge of tbe facts, and authorized to act in behalf of plaintiff. See Peignolds v. Pavis, 12 Mod., 383. And tbe record must show the authority to act (Hill v. Hoover, 5 Wis., 354), and that affiant has knowledge of tbe facts. 2. Tbe uncontradicted affidavit of 8nmner, accompanying tbe motion to vacate, showed that at tbe time of entering judgment the note bad been mostly paid.
    
      Finch & Barber, for respondent,
    argued that tbe ordinary rule, that tbe party seeking relief must make out bis case by a preponderance of evidence, is applicable to a motion to vacate a judgment by confession. Williams v. Hernon, 33 How. Pr., 241; 3 Keyes, 99. Tbe affidavit filed with tbe complaint states positively tbe amount due. Tbe amount is matter of evidence, and tbis affidavit satisfied tbe court below. Appellants bave shown no defense, and bave not asked to file any answer. Nor does it appear that plaintiff could not, even if tbe judgment were set aside, immediately obtain a like judgment again.
   Ryan, C. J.

Tbe motion in tbis case was founded upon irregularities in entering ‘up tbe judgment; and is therefore not an appeal to tbe discretion of tbe court, in which a verified answer disclosing merits should be served with tbe motion papers, as held in Levy v. Goldberg, presently decided [ante, p. 308]. It would indeed be more satisfactory, in cases like this? if tbe motion were founded upon a verified answer, and not on a mere affidavit of tbe defendant. But when tbe motion goes upon irregularity, we do not feel at liberty to require a verified answer as a condition of relief.

It is true that it has been held that tbe supervision of cciurts, on motion, over judgments entered upon warrants of attorney, is of an equitable character; and that tbe burden is on tbe defendant to show some wrong or injustice in tbe judgment. That rule appears to rest on tbe release of errors usually found in warrants of attorney. Van Steenwyck v. Sackett, 17 Wis., 645. Here there is no release of errors.

Aside, however, from release of errors, there are doubtless mere irregularities which should not have weight, under sec. 40, cb. 125, E. S., to disturb a judgment upon a warrant of attorney. But courts bave generally, and we thirtk rightly, looked closely into such judgments, to see that no substantial wrong has been done to tbe defendants, either in the judgments themselves or in tbe amounts for which they are entered up. And tbe equitable power which should not be invoked for immaterial irregularities, should surely be exercised against substantial injustice done by substantial irregularities.

When judgment is entered up upon warrant of attorney, there is special reason that the complaint should be verified. The statute, however, does not require a formal verification of the complaint; but, evidently as a substitute and equivalent for it, requires the plaintiff, or some one in his behalf, to annex to the complaint an affidavit stating the amount due. For it "would not only be dangerous to give judgment in such manner without some proof of the actual debt, and unjust to render judgment for the whole, where part only is due, but the warrant of attorney is authority to confess judgment for the amount due only. Dilley v. Van Wie, 6 Wis., 209. That case is stronger than it appears in'the report; for we find by the record that the warrant was to confess judgment for the sum appealing to loe due according to the tenor of the note; yet the court held the authority limited by the amount actually due. And the affidavit which the statute requires is not a mere form, but goes to substantial rights of the parties. When the plaintiff himself makes the affidavit, it would probably be sufficient merely to state the amount due in the terms of the statute; because he is presumed to know the precise sum due upon the contract which he holds. But when some one else on his behalf makes the affidavit, we are inclined to think that the affidavit should disclose why it is not made by the plaintiff; and we are quite clear that it should state the means of knowledge of the person making it, within the rule of Crane v. Wiley, 14 Wis., 658. It is true that the statute does not in terms require this, as in the verification of a complaint; but the reasoning of that case applies as forcibly to the affidavit annexed to the complaint in cases of confession; and the necessity of a strict rule is far greater. Without stating his means of knowledge, a person not a privy to the contract may well be presumed to found his affidavit upon the tenor and effect of the contract only; saying no more than the contract says as well or better, and giving no assurance to the court of the justice of the judgment, which the contract itself does not give. Such an affidavit, made by a stranger not disclosing Ms means of knowledge, bas little significance. A reasonable effect must be given to tbe provisions of a statute, according to its object, and a mere literal compliance will not always do. Tbe statute bore requires an affidavit of one knowing tbe fact.' And there is no presumption tbat a stranger knows tbe fact, unless be disclose bow be came to know it. A plaintiff taking judgment on a warrant of attorney, wbo cannot make tbe affidavit for bimself, cannot be allowed to cheat the statute by getting tbe affidavit of one knowing nothing of tbe matter, not disclosed by tbe contract itself.

"We are aware tbat tbe affidavit in Blaikie v. Griswold, 10 Wis., 293, is open to tbe same objection, overlooked by tbe court in tbat case; the court considering tbe affidavit to be substantially in conformity to tbe statute. But there objection was specially made to tbe affidavit’s not stating tbat it was made on behalf of tbe plaintiff’. Tbe attention of tbe court was called to tbat point only, and tbe substantial defect of tbe affidavit was overlooked. And so far as tbat case may be in conflict with this, it must be considered overruled.

Tbe record before us fully justifies our present view. Tbe attorney probably meant no more in bis affidavit than tbat tbe whole amount appeared to be due on the face of tbe paper itself. And tbe appellant’s'affidavit, in support of tbe motion, showed a payment of a large proportion of tbe amount before tbe attorney’s affidavit was made. Some criticism was made upon tbe manner in which tbe payment is stated in tbe appellant’s affidavit; btit there was no denial of it on tbe respondent’s part; and, for tbe purposes of tbe motion, it must be taken for true, like an uncontradicted statement upon information and belief.

Tbe judgment was therefore not only irregular, but was made to appear unjust and oppressive. And, as tbe motion appears to have been made in time, within tbe rule of Ætna Ins. Co. v. McCormick, 20 Wis., 265, it should have been granted. Dilley v. Van, Wie, supra; Second Ward Bank v. Upman, 14 Wis., 596; Jones v. Keyes, 16 id., 562.

By the Court. — Tbe order of tbe court below is reversed.  