#### Lathrop and others vs. Snyder. Wells vs. Snyder.

Subdivision 4 of section 25T, chap. 132, R. S¡, which authorizes the clerk to enter judgment on the application of the plaintiff in certain actions, for the amount admitted by the answer to be due, is a valid enactment.

In an action upon a note payable in this state with exchange on New York, where the complaint claimed exchange at a certain rate, and the answer denied the rate, but admitted the making and non-payment of the note, and set up a counter-claim: *EeU,*that the plaintiff might have judgment entered by the clerk for the excess of his claim, *omitting exoJimge,*over the counter-claim.

It was not error for the court to refuse to set aside such a judgment on the ground that it was signed in the name of the clerk, “ per S**** *”*; that no judgment roll had been filed or made up; or that there was a *slight*error in' the amount for which judgment was entered.

Nor was it error for the court to refuse to set aside the execution in such a case on the ground that the only term of said court that intervened between the entry of judgment and the issue of such execution, commenced less than eight days after the judgment was entered.

APPEAL from tbe Circuit Court for *Pierce*county.

The action first named was on a promissory noté executed by the defendant to the plaintiffs, at the city of New York, September 10, 1860, for $1561.03, payable six months after date, at the City Bank of Prescott in this state, ‘’with, the current rate of exchange on New York. The feomplaint alleges that when the note fell due, the rate of exchange between Prescott and blew York was five per cent, in favor of the latter, and demands judgment accordingly. The answer admits the making of the note under the circumstances and for the consideration thereinafter mentioned; and alleges that at the time of such making the plaintiffs, at New York, sold the defendant a quantity of dry goods, which they agreed to safely pack and forward to the defendant at Prescott; that they failed to forward a part of said goods, to the value of $85.47; and that they forwarded the remainder so unsafely packed that they were greatly injured, to the defendant’s damage $47.63. The answer demands that “ the above mentioned sums may be set off against any sum that the plaintiffs may show against *111tbe defendant on tbe trial of tbe cause j” and denies all tbe allegations of tbe complaint not specifically admitted. Upon the filing of tbe answer, tbe plaintiffs gave notice to tbe defendant’s attorneys that they would apply to tbe clerk of said court for judgment for $1478.50, with interest from March 18, 1861, as tbe amount admitted by tbe answer to be due. On tbe 21st of May, 1861, judgment was entered, in tbe following form, after tbe title: “ It appearing by tbe answer of tbe defendant in tbe above entitled cause, that the sum of $1478.50 of tbe above named plaintiffs’ claim, set forth in tbe complaint herein, is admitted, after deducting tbe counter-claim set up in said answer as such, tbe amount of such counter-claim being $88.10, and there being no other defense to the action, and application having been made for judgment * * * it is ordered and adjudged that tbe above named plaintiffs recover of tbe said defendant tbe sum of $1497.32 damages, and $74.80 costs,” &c. (Signed) “SmithR Ghnsrar, Clerk circuit court, Per Smith. It appears that a general term of said court was held on tbe 27th of May, 1861. On tbe 14th of June an execution was issued upon tbe j udgment. Tbe defendant, at a special term of said court in July following, moved to set aside tbe judgment upon tbe following grounds : 1. That the pleadings make an issue of fact which was not determined. 2. That no proof was offered upon which such judgment could be given. 3. That tbe judgment was for a larger amount than was admitted by tbe answer to be due, and larger than was found due by tbe clerk. 4. That tbe judgment was not entered by the clerk. 5. That no judgment roll bad been made up or filed in the cause before execution issued, or subsequently. 6. That said execution was issued before tbe expiration of a term of said court, at which a motion could be made to set tbe judgment aside. Tbe defendant filed with tbe motion an affidavit showing that no judgment roll bad been filed. Motion denied ; from which decision the defendant appealed.

*112Tbe second action named was similar to tbe first, and tbe appeal taken for tbe same reasons.

*White &*Jay, for appellant:

1. Subdivision 4, sec. 27, chap. 132, R. S., is in conflict with sec. 2, art. YII of tbe constitution of this state. It requires the clerk to adjudge that tbe answer contains no other defense than tbe counter-claim, and also to adjudge how much of tbe complaint is admitted, and what amount of counter-claim is legally set up. 2. Tbe complaint alleges tbe rate of exchange at tbe time and place fixed for payment of tbe note to have been five per cent., and this is denied by tbe answer, making an issue yet undisposed of. 3. Only $1,478.50 is found admitted, and judgment is entered for $1,497.32. 4. Tbe judgment does not appear to have been entered by tbe clerk, but by one Smith. 5. Tbe execution could not legally issue until judgment was entered (R. S., chap. 134, sec. 1); and that could not be done until tbe judgment roll was filed. Chap. 132, sec. 36. Nor could tbe execution issue until after tbe expiration of a term at which a motion could have been made to set tbe judgment aside. R . S., chap. 132, sec. 27, subds. 1 and 4.

*Dawson & Clapp,*for respondents :

1. As to tbe power of tbe clerk to enter tbe judgment, see *Blaikie v. Griswold,*lOWis., 299; *Wells v. Morían,*id., 468; *Moyer v. Cook,*12 id., 335. 2. By our computation tbe amount of principal admitted by tbe answer to be due is less by *fifty-three cents*than tbe sum stated in tbe recital at the beginning of tbe judgment, while on tbe other band tbe interest is underestimated in tbe judgment to the amount of *thirty-three cents.*But this mistake in calculation is too trivial to be1 assigned for error. 3. A deputy clerk has power to sign judgments. R. S., chap. 13, sec. 68; *Sexton v. Bhames,*13 Wis., 99. A court takes judicial notice of tbe signatures of its own officers, and of their being such. 1 Hill, 154, 161; 27 Ala., 17; 5 How. Pr. R, 341; 9 Cal., 315; 1 Grreenl. Ev., § 6. 4. Tbe fact that tbe judgment roll was not made up will not in*113validate the judgment. 13 Wis., 99. 5. The clerk is required to enter the j udgment in a judgment book without reference to the making up and filing of a judgment roll. R, S., chap. 132, secs. 34, 35. And execution issues upon the judgment thus entered. Chap. 134, sec. 1. 6. The execution was not issued until after a general term of the court, at which the judgment might have been set aside if cause had been shown.' Chap. 132, sec. 27, subd. 1. It is said that there were not eight days between the time of entering up the judgment and the first day of said term, so that it was too late to notice such a motion. But on a rule to show cause why the judgment should not be set aside, the time might have been shortened.

*By the Court,*

Cole, J.

These actions were brought upon promissory notes. In each case the defendant below admitted the execution of the notes, and that the amounts therein stated were due, after deducting the counter-claims mentioned in the answers. The plaintiffs then made application to. the clerk to enter judgments for the amounts so admitted to be due after deducting the counter-claims, in conformity to .the practice prescribed in subdivision 4, sec. 27, chap. 132, R. S. It is claimed that this provision of law is invalid, because it attempts to confer upon the clerk judicial power vested only in courts.

This point has been decided adversely to the defendant in several cases which have come before this court, and the practice here adopted has been sustained. *Blaikie v. Griswold,*10 Wis., 294; *Wells v.*Morton, id., 468. No good reason was shown in the court below for setting aside the judgments, and the applications for that purpose were properly denied.

The orders of the circuit court are affirmed, with costs.