By the Court,
Dixon, C. J.The only question involved in this case is, whether judgments can be legally entered by the clerks of the circuit and county courts, in vacation, in the cases provided in section 27, of chapter 132, of the Revised Statutes of 1858. This section is identical with section 158 of the Code of Procedure, as originally enacted in this state, with the exception of subdivision four, which was added by the revisors. On the part of the plaintiffs in error, it is contended that by these provisions an attempt' is made to transfer to the clerks a portion of the judicial power, which by section 2, of article 7, of the constitution, is vested alone in the courts therein provided for. If-this be true, there can be no doubt that these provisions are unconstitutional, and that judgments entered in pursuance of them are illegal and void.
The proposition of counsel, that “ the rendition of a judg*470ment is a judicial act, which can be done by the court only/’ is undoubtedly correct, if by it they mean to assert that such is the theory of the law in all cases. But if they mean to affirm that no judgment can be rendered without the actual presence and direction of the court, or judge, then it is not correct. The practice of allowing clerks and protho-notaries, in vacation, and in the absence of the court, or judge, and without his order or direction, to enter and record judgments by default and confession, is of very ancient date. It had its origin soon after the substitution of written for oral pleadings, and still prevails in England. It has obtained in many of the American states. It has been the constant practice of this state, from its organization to the present time. It also prevailed in the territory, at and before the adoption of our state constitution, as will be seen by a reference to the statutes then in force. Prior to the passage of the code, it was regulated by rules of court. (See Rule 13, Old Rules.) It has frequently been recognized by this court, and never, to my knowledge, questioned, before the present time. Holmes vs. Lewis et al., 2 Wis., 83; Tallman vs. Tuesdell et al., 3 id., 443; Remington vs. Cummings, 5 id., 138.
In Tallman vs. Tuesdell, Mr. Justice Smith, who delivered the opinion of the court, used the following language, in reference to section 17, of chapter 89, of the Revised Statutes of 1849 : “We are not aware that any authoritative construction has been given to this provision; but taken literally, it would seem to authorize the court or judge, at any time, whether in term or out, in case of default, to proceed to a final disposition of the case. The defendant having been regularly served with process, and time given him to plead answer or demur, failing to do either, dr interpose any objection to the plaintiff’s claim, is deemed to have admitted its correctness. The court or judge is then authorized to dispose of the case, either upon bill, or to require proof, or *471to put the complainant upon an examination. This provision only applies to cases of default. It authorizes the taking of proofs by the judge or court in term, or out of term, and a decision upon questions of fact, as well as law.” This language no more clearly implies that a judgment may he entered in vacation, when there is no court in fact in session, than that of the other two cases above cited. It seems to he taken for granted, in all of them, that such judgments may be entered. We are aware that in neither was the question here made, raised or directly- adjudicated. We do not refer to them as direct authorities, but as evidence of the universal acquiescence on the part of courts, as well as the bar. It is well known to every lawyer, that instances of the entering of judgments in vacation^ upon confession or by default, have been very frequent, and that their validity has never been seriously doubted or questioned. Silence is sometimes said to be equivalent to a direct consent. In questions like the present, where the practice has been so constant and uniform, and where it has been so universally sanctioned by the courts, the legislature, and the profession, we cannot but regard the silence with which it has been suffered to prevail, and the want of all objections to it, as equal- to direct adjudications in its favor.
The objections here made to it are purely technical. Upon such we cannot consent to disturb it. A proceeding thus recognized and established, should only be overturned for causes which reach its merits and justice. The reasons for sustaining it are numerous and weighty. The same motives of necessity which operated to introduce it originally, still exist, and in a greater degree. Our courts have quite enough to do in the management and conducting of real contraver-sies between parties litigant, without being troubled with the oversight and direction of matters about' which there is no dispute, and upon which there is no opportunity for the ex*472ercise of a judicial discretion. The same rule which would operate to compel the judge or court to command or direct the entry of judgment in such cases, if carried to its logical result, would likewise compel him personally to direct the whole business of the action; and we would thus be brought back to the most ancient practice, when all of the important proceedings, of process, appearance, pleadings, orders, judgment, and execution, were conducted in open court, and in the immediate presence of the judges and parties. Every step in an action, from first process to execution, was anciently thus taken, and is still supposed to be, or was so supposed, before the adoption of the code. This supposition prevails in the case of a judgment entered in vacation, as well as in the other proceedings in the action.
Mr. Stephen, in his work, on pleading, on page 110, says : “Judgments, like the pleadings, were formerly pronounced in open court, and are still always supposed to be so. But by a relaxation of practice, there is now, in general, except in the case of an issue in law, no actual delivery of judgment, either in court or elsewhere. The plaintiff or defendant, when the cause is in such a state, that by the course of practice he is entitled .to a judgment, obtains the signature or allowance of the proper officer of the court, expressing, generally, that judgment is given in his favor; and this is called signing judgment, and stands in the place of its actual delivery by the judges themselves. And though supposed to be pronounced by the court, yet judgments are frequently signed in time of vacation, when the court is not sitting.” And again, in speaking of the entering of the judgment on record, he says : “And when judgment is signed, not after trial, but on demurrer, or as by default, confession, &c., there having been no record yet made up, the whole proceedings, to the judgment inclusive, are to be entered for the first time on a parchment roll. This proceeding is called entering the judgment. *473Though supposed to he the act of the court, the duty of making the entry in proper form belongs, in fact, to the attorney of the successful party.” Upon this subject, see, also, Tidd’s Practice, Yol. 1, title “ of Judgments by Confession,” and “ of Judgments by Default;” and Burrill’s Practice, Yol. 1, pages 49, 50, 51, 52, and 369, et seq.
Upon this theory, or supposition, the objection that these provisions transfer to or vest in the clerk judicial powers, is entirely removed. The judgment, though in fact entered by the clerk, is, in the consideration of the law, what it purports on its face to be: the act and determination of the court itself. Such having been the well known and understood practice at the common law, when the constitution was adopted, it cannot .for a moment be supposed that the framers intended by the provisions there inserted to abolish or change it. Nor do we think -that it is affected by the code. The intention of the legislature to retain the substance of the old proceedings, is plain enough. To be sure, the fiction, by which the record was made to appear as if the judgment was rendered as of the preceding term,' is gone, and the proceeding now appears what it really is, and always, in fact, was, a judgment rendered in vacation, when there is no court actually in session. Though not the judgment of the court, according to its legal sense or definition, yet to hasten the progress of business, and facilitate the ends of justice, it is to be regarded by the courts as such, and may be so regarded, as well without as with the fiction or supposition formerly resorted to.
Judgment affirmed.