dissenting. I dissent from the opinion of the court that a judgment entered in vacation by the clerk of a circuit court,without the sanction or intervention of any judi*474cial officer, is a legal judgment. I shall not enter into any examination of the validity of those laws existing prior to the adoption of the code, under which judgments on confession were entered in vacation. For I think their validity may be conceded, without justifying the conclusion of the majority of the court. For there is this marked distinction between those laws, and that provision of the code under which this judgment was entered, that the former required the judgment itself to be signed by a judge or commissioner having judicial power, while the latter allows the whole to be performed by the clerk, who has not, and cannot have judicial power. I concede that even under the former laws, it would be difficult, by any satisfactory reasoning to show that a judgment rendered by a judge in vacation, was really the judgment of a court. But still it would have the sanction of that officer, who, in term constitutes the court, and who may, as the constitution clearly implies, exercise a portion of the judicial power in vacation. For although section 2, Art VIL, vests the judicial power “ in there courts” the specified, yet sec. 23 of the same article, provides that persons may be appointed in each county, and judicial power vested in them, “provided that such power shall not exceed that of a circuit judge at chambers.” A judgment on confession, therefore, rendered under the old law, in vacation, would be the act of that officer, who may, under the constitution, exercise judicial power in vacation. And it being conceded that he may exercise a portion of that power, and the constitution not having prescribed what portion, it might well be said, that it was competent for the legislature to regulate that matter at discretion. But whether there are any limits to its power in that respect, I do not consider it material to inquire.
The former practice and long acquiescence, therefore, so strongly relied on in the opinion of the cpurt, extend only to the support of such judgments. For the laws of the Terri*475tory R.S., 18 39, 2.36, sec. 2, and 228 sec. 13, expressly required judgments to be signed by a judge or court commissioner, and provided that no judgment on confession should be of any validity till so signed. And such having been the practice prior to the adoption of the constitution, when that instrument, as before shown, recognizes the fact that judicial-power may be exercised in vacation by a judge or commissioner, it may well be deemed to- have contemplated, at least such portion of that power as had previously been so exercised. And we accordingly find that the laws of the state were the same in this respect as those of the territory, requiring judgments in vacation to be signed by a circuit judge or court commissioner, and providing that they should be of no validity till so signed. . R. S., 1849, chap. 102, § § 2 and 14. While, therefore, I am: willing to concede that it is competent under the constitution for the legislature to authorize the entry of judgments in vacation, by those officers who, under that instrument, may exercise judicial power, I think the existence of such a law, and the general acquiescence in their validity furnish no support for the conclusion that the legislature may authorize such judgments by an officer who has no judicial power. And it is by reason of this distinction that I am unable to admit the conclusion of the majority of the court.
The decisions of this court referred to go no further than to sustain the judgments of judicial officers. And instead of sustaining the position that the action of such officers may be dispensed with entirely, and judgment rendered by a clerk, I think so far as they have any bearing at all on the question, they are decidedly the other way. Thus, in Holmes vs. Lewis, 2 Wis., 83, it was held that before the clerk could assess damages, “ there must be a judicial determination that the charge in the declaration is true.” The word “judicial” is italicised in the opinion, implying, very distinctly that the *476clerk was not competent to such a determination. And this is not left to mere implication, for the court proceeds to hold that the court could not, by rule or otherwise, depute its judicial power to a clerk, to be exercised by ‘‘rendering final judgments in vacation.” And the language of the court clearly notices the distinction between the rendering of a judgment by the clerk, and the “entering up” of a judgment on confession, which, as before shown, could only be done by the sanction of a judicial officer. The entering of a judgment authorized by a judicial officer is a proper act of a clerk. The rendering of a judgment, without the intervention of any judicial officer is, in my opinion, a power with which he cannot be clothed. And. this, I think, is precisely the distinction between the former and present practice.
In Tallman vs. Truesdell, the question was as to the power of the court of chancery to render a final judgment at special term. The power was very properly upheld, and in considering it, Justice Smith refers to anpther section of the statute,which, he says, “taken literally, 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.” This language is guarded, and by no means commits the judge to the position that even a judge might under that statute have rendered a final judgment in vacation. But even if it did, the position may be conceded, as I have already attempted to show, without furnishing any sanction to a law authorizing a clerk to render a similar judgment. I think, also, that the decision of this court, as to the necessity of a judgment on confession being signed under the old practice, tends to support my conclusion. Section 2, chap. 102, R. S., 1849, which required judgments to be signed was repealed by chap. 197, Laws of 1851, and judgments on confession were afterwards quite generally entered up with*477out being signed. But in Remington & Perry vs. Cummings, 5 Wis., 141, this court held that such judgments were void. It is true the decision seems to be placed on the effect of the statutes, but I am constrained to think the court, in coming to its conclusion, must have had in view the difficulty of sustaining a judgment entered in vacation by a clerk, without the intervention of any judicial officer.
The majority of the court admit that no part of the judicial power can be vested in a clerk, and they sustain the judgment in this case, upon the ground that it is not to be regarded as the judgment of the clerk but of the court. But I cannot see how this view can possibly be sustained. In the first place it does not purport to be .rendered by the court, and if it did, it appears to have been rendered at a time when the court was not in session, and, therefore, not in existence for the purpose of rendering a judgment.
In McDonald vs. Bunn, 3 Denio, 49, the court says, “ A judgment is the sentence of the law pronounced by the court. But the court can only be held in term time, and for the purpose of rendering judgments, it has no existence in vacation. Consequently a judgment cannot be .rendered in vacation; and evidence, although in form that of a record, which states that a judgment was rendered in .vacation, shows what could not possibly have occurred, and is, therefore, intrinsically null and void.” This it states to be the law, independent of the statute of 1840, in New York, allowing judgments to be entered in vacation.
In Hodges vs. Ward et al., 1 Tex., 244, it was held that a judgment rendered by a judge at chambers at a time when the court could not by law be held, was not and could not be the judgment of the court. In Shepherd et al. vs. Wilson, 1 Morris, Io. Rep., 448, it was held that a judgment entered at a time when the court could not by law be in session was a nulity. And this is unquestionably the general rule. *478And the only exception to it that can exist under our constitution is that which allows a judgment in vacation by a judicial officer. And I have already admitted that it is difficult to sustain even this exception by any satisfactory reasoning" For it is hard to see how it can be shown that even a judge can render a judgment of the court, at a time when the court itself could not sit and render the same judgment. But, conceding this exception to he established, and that a judgment rendered by these judicial officers in vacation may by a resort to fiction and a stretch of legal intendment be considered as the judgment of the court, yet the exception goes no further, and in my opinion rests upon too questionable a foundation to justify the extension of the fiction to new cases.
It seems to me clear that the statute under which this judgment was entered, required of the clerk an exercise of judicial power. That he not only entered, but rendered the judgment. It requires proof to be filed with him of the service of the summons, and that no answer has been received. He is therefore obliged to decide on the sufficiency of the service, and come to the judicial determination, that on the pleadings and proofs presented to him, the plaintiff is entitled to judgment. This is an exercise of judicial power. To see it more clearly, separate his action as a mere clerk from the other powers, and confer the latter on some different officer. Suppose the statute provided that the same proofs should be made to a notary public, and on his determination that there was a default and ordering judgment it should be entered by the clerk ; would not this be conferring judicial power on the notary ? It seems to me clearly so. And who could say that such a judgment could be considered as the judgment of the court? Yet the power may just as well be conferred on.a notary, as on the clerk.
The clerk must judge whether the court has jurisdiction of the cause also. Suppose an action in some of the county *479courts with limited jurisdiction claiming an amount beyond the jurisdiction. The clerk in deciding to enter a judgment on default proved before him must pass on the question of jurisdiction. In short, it seems to me too plain to admit of argument, that in order to obtain a final judgment, there must be an exercise of judicial power somewhere. And equally clear that in this instance it is exercised by the clerk, because it is not exercised by any other officer, he being the only one who acts at all.
It is undoubtedly true that the rules of the common law which'required most judicial matters to be transacted in term have been greatly changed. But it has been by statute, and at a comparatively recent period. Chitty Gen. Pr., vol. 3, chap. 3. Such has also been the case in New York. But though I have not examined with very great scrutiny, I apprehend there were no constitutional restrictions to interfere with the discretion of the legislature as to the vesting of the judicial power. Such at least is the view taken of the practice in New York, in a recent decision in Michigan. Chandler vs. Nash, 5 Mich., 409. The provisions of the constitution of Michigan in respect to the judicial power are substantially like ours. And it was held in that case that the legislature could not confer on a notary public power to dissolve an at-attachment. And the court distinguish their constitution from that of New York by remarking, that the latter contained no such limitation as to the judicial power, and refer to Sill vs. Corning, 15 N. Y. Rep., 300, where the majority of the court sustain a law establishing a court in a village, although such court was not among those provided for in the constitution upon the express ground that the constitution did not require the judicial power to be vested in the courts which it established. I think therefore that the question cannot be tested by the practice in New York or in England; which, even there, has been introduced by positive statute; *480but that it depends entirely on the question whether under our constitution, judicial power can be vested in a clerk; and, if not, whether the proceedings by him in entering a judgment under this act require an exercise of such power. And being of the opinion that he cannot be clothed with such power, and that he is required to exercise it in entering such a judgment, I think this provision of the statute authorizing a judgment to be entered by the clerk in vacation, without the action of any judicial officer, is invalid. And the following cases will, I think, sustain the view I have taken: Bontor vs. Clay, 1 Lit., 27; Holmes et al. vs. Carr, 1 Mo., 419; Goddard vs. Coffeic et al. id., 381; Mathews vs. Moore, 2 Murp., 181.
It is said that the objection is technical, and that it does not require the exercise of legal discrimination to enter a judgment on default, where the claim is confessed. This may be true, but to my mind it is a satisfactory answer to say that if the legislature may vest judicial power in the clerk as to those matters where the judicial action is very simple and easy, this will serve as a precedent to clothe him with those powers which are more difficult. If this judgment can be sustained, I can see no reason why- the legislature may-not extend the power so that the clerk may take the proofs and render the judgment in all those cases where specific relief is demanded as well as on a money claim. Indeed I see no stopping place. The objection is not so much to the evils of the practice as it is now allowed, as to the fact that it opens a passage through the provisions of the constitution, through which evils may enter.
I think within the case of Hodges vs. Ward, 1 Tex., 246, and Remington vs. Cummings, 5 Wis., 138, there was no judgment, and that the writ of error should be dismissed.
Note, — The Reporter, by mistake, ascribed to me the opinion in Blaikie vs. Griswold, ante, 293, which was in fact written by Justice Cole. I notice it here because, while I think there is no conflict between my conclusions in the foregoing opinion, and the points decided in that, there still is some oonflict in the reasoning of the two opinions. PAINE, J.