#### Reeves & Co., Appellant, vs. Kroll, Respondent.

*September 27*

October *15, 1907.*

*Appeal: Undertaking: Sufficiency: Judgment on*cognovit: *Debt not yet due: Warrant of attorney: Construction: Affidavit: Motion to set aside judgment: Discretion: Costs.*

1. Where, pursuant to sec. 3060, Stats. (1898), the circuit court directed that upon appeal from an order an undertaking in the sum of $300 he given to secure both costs and a stay, this in practical effect merely added $50 *t0‘ the*amount of the undertaking required hy sec. 3052; and no additional or separate undertaking was necessary to render the appeal effectual.

2. A judgment on *cognovit*in, the usual form for an indebtedness already due, but which contained no suggestion that any part was not so due or as to when it would become due, was entered on a note not presently due. The note embodied a warrant of attorney which authorized the confession of judgment at any time “for such sum as shall at such time appear to be unpaid thereon, whether the same be then due or to become due,” released “all errors in the entering of such judgment,” and consented to “the immediate issuing of execution.” *Held,*that the judgment in the form rendered was unauthorized either by law or by the warrant of attorney, or by an answer thereunder confessing the amount of the face of the note and interest to be due.

3. While sec. 2896, Stats. (1898), authorizes the entry of judgment on *cognovit*before the debt is due when so authorized by a warrant of attorney, yet that section, in connection with subd. 7, sec. 2969, Stats. (1898), permits only such form of judgment as declares any immaturity which may exist, to the end that execution may issue and be enforced only for the part due.

4. A warrant of attorney embodied in a note not presently due, authorizing the confession of judgment at any time “for such sum as shall appear to be unpaid thereon, whether the same be then, due or to become due,” is construed to authorize only such judgment as declares the existing immaturity.

5. A judgment on *cognovit*on a note not presently due is without authority unless supported by an affidavit stating what amount is due and what amount is to become due, as required by sec. 2896, Stats. (1898).

[6. Whether the defect of omission of such affidavit is jurisdictional so as to .render the judgment a complete nullity, or iá merely *197an error within jurisdiction which may be cured by the release of errors and irregularities, not determined.]

7. An application to set aside a judgment on *cognovit*appeals to the equitable power and discretion of the court, and although void the court is not bound to set the judgment aside upon motion, unless it appears to be inequitable.

8. Under sec. 2832, Stats. (1898), conferring power to vacate judgments upon such terms as may be just, the fact that a judgment on *cognovit*was wrong, unauthorized, and oppressive to the defendant by the fault of plaintiff, and such that it probably must have been reversed on appeal, is sufficient to justify the trial court in setting it aside upon motion without requiring the payment of any costs by defendant to plaintiff.

■ Appear from an order of the circuit court for Winnebago ■county: Geo. W. Bubhell, Circuit Judge.

*Affirmed.*

On October 10, 1906, plaintiff procured to be entered up and signed by the county judge judgment on *cognovit*in -circuit court for Winnebago county upon two certain judgment notes due December 1, 1906, each embodying a warrant •of attorney to confess judgment at any time whether the note be due or is to become due at that time, also to release all errors and consent to the immediate issuing of the execution. 'The judgment was in the usual form for an indebtedness already due, and contained no suggestion that any part was mot so due or as to when it would become due. On February 12, 1907, defendant procured order to show cause why the judgment should not be set aside, accompanied by his affidavit showing good defense, and that he had no knowledge of its ■entry .until long thereafter, whereupon he immediately eon-suited attorney and took steps to prepare defense and to pre.sent the motion. The court ordered the judgment set aside without costs to either party, from which order the plaintiff .appeals.

*Gerrit T.*Thorn, for the appellant.

Eor the respondent there was a brief by *F. F. Kileen,*and -oral argument by *Perry Nishem.*

*198Dodge, J.

Respondent moves to- dismiss tbe appeal for defect in undertaking, for tbe reason, as be claims, tbat it does not secure both tbe costs and damages wbicb may be awarded against appellant on appeal not exceeding $250, as required by sec. 3052, Stats. (1898), and also tbe conditions of staying tbe order as prescribed by order of tbe court under sec. 3060, Stats. (1898). Tbis contention is based upon a misapprehension. Tbe undertaking is in tbe sum of $300, and tbe order of tbe court fixing tbe amount of undertaking-prescribes tbat total as tbe amount necessary to secure both costs and stay; tbus in practical effect adding $50 to tbe amount of tbe undertaking wbicb would be required by statute to merely render tbe appeal effective. Tbe undertaking; is in complete response to tbis order and satisfies it. Plence tbe motion to dismiss tbe appeal is overruled.

Tbe judgment on *cognovit,*in tbe form rendered, was unauthorized either by law or by tbe power of attorney or by-tbe answer filed. While undoubtedly tbe statute, sec. 2896,, Stats. (1898), authorizes tbe entry of judgment on *cognovit'*before tbe debt is due when so authorized by tbe power of' attorney, yet tbat statute, in connection with subd. 7, sec. 2969, Stats. (1898), has been held to permit only such form of judgment as declares any immaturity wbicb may exist, to-tbe end tbat execution may issue and be enforced only for-the part due. *Sloane v. Anderson,*57 Wis. 123, 15 N. W. 21; *Reid v.*Southworth, 71 Wis. 288, 36 N. W. 866. Such-being tbe only form of judgment authorized by law, a power-of attorney executed in Wisconsin to confess judgment before due must be construed to authorize only such judgment. Hence tbe present judgment was neither authorized by the-maker of tbe notes nor by tbe statute. Further than tbis, the-judgment was without authority because unsupported by the-form of affidavit which is required by sec. 2896, Stats. (1898). ' This affidavit is required to state what amount is-due and what amount is to become due. *Sloane v. Anderson,.*
      *199
      *supra.*It may not be entirely certain under our authorities whether such defects in the procedure as these are jurisdictional so as to render the judgment a complete nullity, or are merely such errors within jurisdiction as may be cured by the release of errors and irregularities. *Sloane v. Anderson, supra; Kahn v.*Lesser, 97 Wis. 217, 221, 72 N. W. 739; *Marshall & I. Bank v. Milwaukee W. Mills,*84 Wis. 23, 53 N. W. 1126; *Horning v. K. Griesbach B. Co.*84 Wis. 71, 54 N. W. 105; *F. Mayer B. & S. Co. v. Falk,*89 Wis. 216, 61 N. W. 562. We shall not, however, deem it necessary to resolve that question here. Although void, the court would not be bound to set the judgment aside upon motion, unless it appeared to be inequitable. *Purcell v. Kleaver,*98 Wis. 102, 73 N. W. 322. Hence an application to set it aside in a measure always appeals to the equitable power and discretion of the court. If, however, it be conceded that this judgment has been set aside in the exercise of the power conferred by sec. 2832, Stats. (1898), to vacate judgments, and that the action must be controlled by the provisions of that section that the vacation shall be upon such terms as are just, we are not prepared to say that there has been any abuse of discretion in refusing to impose costs upon the defendant. The fact that the judgment was wrong and unauthorized and oppressive to the defendant, and all this by the fault of the plaintiff, so that it probably must have been reversed upon appeal, and 'that, too, at the cost of the plaintiff, was a sufficient reason if also inequitable to justify the trial court in setting it aside upon motion without requiring the payment of any costs by defendant to plaintiff.

*By the Court.*— Order appealed from is affirmed.