#### Morrison vs. Austin.

The affidavit of “no answer,” contained in a judgment roll, stated that *the*copy of an answer to the complaint had been received by the affiant or by his associate counsel, or at their office.; and the judgment, as set forth in the roll, was, that the plaintiff *receive*of the defendant the sum of, &c. *Meld,*that the word *“the"*in the affidavit was obviously written by a clerical mistake for the word *no,*and the word *receive*in the judgment, for the word *recover,*and such mistake should be disregarded on appeal or error, or when the judgment is collaterally called in question. ,

An execution, after stating that a certain judgment was rendered in a certain action, “between A— as plaintiff and'B— as defendant,” commanded the sheriff that he satisfy said judgment out of the property of “said judgment debtor.” *Meld,*that the fact that the execution was subscribed by the attorneys for the plaintiff in said action indicated sufficiently that the defend-dant was the person referred to as the “judgment debtor.”

An entry of judgment by the *clerk*under sec. 21 chap. 123, E. S., when the summons (or summons and complaint) had not *"been personalty*served on the defendant, is irregular.

But where there was due service of the summons by copy, the jurisdiction of the *court*was complete, and the judgment entered by the clerk is good until set aside on motion.

A defendant in an action for the recovery of personal property, may, if he chooses, take a judgment for a return of the property, *•without*the alternative that if the property cannot be had, he recover its value from the plaintiff.

ERROR to tbe Circuit Court for *Marathon*County.

Action to recover possession of certain lumber alleged to belong to tbe plaintiff, and to have been unlawfully detained, &e. Answer, a general 'denial; and title in tbe defendant by purchase at a sheriff’s sale upon an execution on a judgment in favor of tbe defendant against one Single, who was tbe owner of tbe lumber at tbe time it was taken in execution ; with a demand of judgment for a return of tbe lumber and for damages. ' '

After tbe plaintiff bad closed bis testimony, tbe defendant offered in evidence tbe judgment roll and execution referred to in bis answer. From tbe roll it appeared that tbe judgment was entered against Single, by tbe clerk of tbe circuit court of Marathon county, on tbe 7th of August, 1857, for tbe amount of a note set forth in tbe complaint, upon proof of service of summons and complaint, and affidavit of “ no *602answer.” The proof of service was tbe return of tbe sheriff, indorsed upon tbe summons, tbat be bad served tbe same (with a copy of tbe complaint thereto anexed,) on tbe 17th of July, 1857, on tbe defendant, Single, by leaving a copy thereof a't bis usual place of residence in tbe county of Marathon, in presence of one M-S-, one of bis family, a person of suitable age, who was informed of tbe contents thereof; tbe defendant not being found within bis bailiwick. Tbe affidavit of'“ no answer” was as follows:— “'Eli R. Chase, one of tbe attorneys for tbe plaintiff in this action, being duly sworn, says, tbat *the*copy of an answer to tbe complaint in this action hereto annexed has been received by this deponent or by Wm. H. Kennedy, tbe other attorney for tbe plaintiff, as this deponent is informed and believes, or at their office on Main street in tbe village of Wausau.”

Tbe entry of judgment, after stating tbe service of tbe summons and that no copy of an answer bad been served on tbe plaintiff’s attorneys, proceeded as follows : “ Now on motion of Kennedy & Chase, plaintiff’s attorneys, it is hereby adjudged tbat Hiram Austin, tbe plaintiff, *receive*of Benjamin Single, tbe defendant, tbe sum of,” &c. Tbe execution, after reciting that “judgment was rendered on the 9th day of August, 1859, in an action in tbe circuit court for Marathon county, between Hiram Austin, plaintiff, and Benjamin Single, defendant, for, &c., as appears to us by tbe judgment roll on file,” commanded tbe sheriff that be “ satisfy tbe said judgment out of tbe personal property of said judgment debtor,” &c., and was signed “ Kennedy & Chase, Att’ys for plaintiff.” Tbe plaintiff objected to tbe admission of tbe judgment roll and execution, but tbe court overruled tbe objections. Tbe jury rendered tbe following verdict:— “We find tbat tbe defendant did not wrongfully detain said property in tbe complaint set forth; tbat tbe title of said property is in tbe defendant, and tbat tbe value thereof' is .$240; and we assess tbe defendant’s damage at $20.” Tbe plaintiff moved the court to set aside tbe verdict as irregular and contrary to tbe evidence and law, but tbe motion was 'overruled, and judgment rendered “that tbe defendant have *603possession of tbe personal property described in tbe complaint, and tbat be recover of tbe plaintiff twenty dollars damages aforesaid,” with'costs, &c.

*Park &*Sharpstein, for plaintiff in error,

contended tbat tbe judgment roll was improperly admitted, because tbe affidavit of no answer was insufficient, and because there was in legal contemplation no judgment entered; tbat tbe execution was void for uncertainty, in not stowing wbo was tbe judgment debtor; tbat tbe verdict did not embrace all tbe issues, in not finding wbo was entitled to tbe possession of tbe property *(Smith vs.*Phelps, 7 Wis.,' 211; *Swain vs.*Boys, 4 id., 150); and tbat tbe judgment should have been in tbe alternative, tbat tbe property be delivered to tbe defendant or tbat be recover from tbe plaintiff, in default thereof, its value. 7 Wis., 211; 5 Selden, 470. 'They argued tbat tbe clerk bad no authority to enter judgment unless tbe affidavit showed not only no answer but also tbat there bad been no appearance by tbe defendants.

*MB. Chase, fox*defendant in'error.

[No argument on file.]

December 11.

*By the Court,*

DixoN, C. J.

The-objections to tbe judgment roll introduced in evidence by tbe defendant below are altogether too nice. Tbe law is not .so precise as to send a deserving suitor out of court because bis attorney or tbe clerk has neglected to cross a *t*or dot an *i.*Courts will not turn away from tbe merits of a controversy upon sucb flimsy excuses. Those here urged for defeating what tbe jury have found to be a valid claim, are scarcely more substantial. Tbe word “ tbe” in tbe affidavit of no answer, and tbe word “receive” in tbe judgment, appear at a glance to have been inserted by a mere slip of tbe pen, tbe one 'for tbe word “no” and tbe other for tbe word “recover;” and this is so obvious tbat no person, in tbe least accustomed to tbe perusal of sucb papers, could for a moment be misled, or hesitate at all as to tbe real intention of tbe writer. They -are sucb mistakes as tbe court could at any time have corrected, and as must have been disregarded' in every stage of tbe action. B. S., chap. 125, §§ 37, 40. If tbe case bad come *604before us on appeal or by writ of error, we must bave disregarded tbem and affirmed the judgment. We think, therefore, that they must be disregarded when it is collaterally called in question.

The objection to the execution stands on little better foundation. It is true that a defendant may be the judgment creditor, and that the execution did not state in whose favor the judgment was rendered ; but the fact that it was subscribed by the attorneys for the plaintiff, sufficiently indicated that the judgment was against the defendant in the action, and that he was the judgment debtor spoken of. If that was not enough, a reference to the judgment and the roll, which were accurately described as required by statute, would have removed any doubts.

Another objection not noticed by counsel is, that the summons and complaint were not *personally*served upon the defendant. The entry of judgment by the clerk was therefore unauthorized. *Moyer vs Cook,*12 Wis., 335. But as the return of the sheriff shows due service by copy, jurisdiction was complete and the entry merely irregular. It was good until set aside upon motion.

The verdict comprehends all the issues made by the pleadings. The right of possession of the property was not put in issue, but only the title.

The judgment may be irregular, but it is not an irregularity of which the plaintiff can complain. In *Pratt vs. Donovan,*10 Wis., 378, where the property was taken from the defendant and delivered to the plaintiff, and the defendant succeeded in the action, we held that it was optional with him, under section 187 of the Code, now section 31 of chapter 132 of the Revised Statutes, to take judgment for the value of the property alone, or in the alternative for the return of the property or the value in case a return could not be had, as he might see fit. In that case the defendant did not claim a return in his answer. In this he does. Whether where a return is thus claimed, the defendant may waive it at the trial or upon the entry of judgment, and take judgment for the value, need not now be determined. The judgment here is for the return without the alternative, if it cannot be *605bad, tbat tbe defendant recover tbe value from tbe plaintiff. Tbe right to take a personal judgment, if for any reason return of .tbe property cannot be obtained, is clearly intended for tbe defendant’s benefit. It is necessary for bis protection where be elects to have a return and fails in securing it. If be chooses to waive it and take tbe chances of obtaining a return of tbe property or realizing nothing from bis judgment, the plaintiff ought not'to object. Tbe judgment is for less than tbe defendant is by law entitled to, and more favorable to tbe plaintiff than be could claim, and hence be cannot be aggrieved by it.

Judgment affirmed.