This is an appeal from an order of the circuit court denying the motion of the appellant to set aside the judgment entered against him in favor of the respondent.
The judgment appears, upon the record, to have been entered as of the term of the court held on the fourth Monday of September, 1876; but, according to the affidavit of TI. 0. Baker, Esq., and which fact is not denied, it was really entered by the clerk in the vacation after such term, on the ninth day of February, 1877, and without notice, and attached to the judgment roll by said clerk.
It appears, also, by said affidavit, that the appellant, in defense to the suit, set up a claim of title and to the right of possession of the premises in dispute, by virtue of certain tax deeds issued to him by the county of Polk.
There being no bill of exceptions containing the evidence in respect to this defense, this court cannot know what testimony was received and considered by the jury, or by the court, upon *261tbe subject, but must presume that there was some evidence which the circuit court deemed sufficient to warrant the order entered bj the court during the term and after the verdict on the twenty-sixth day of October, 18T6.
This order recites that, on the trial of said action, it has not “been made to appear affirmatively by the plaintiff that said premises were not liable to taxation for the tax for which they were sold, or that said premises were redeemed from such sale, or that the taxes for which said lands had been sold were paid;” and thereupon the court orders that the plaintiff have the judgment to which he has shown himself entitled, “ upon the payment to the defendant, within ninety days, of the amount for which said premises were so],d, with penalty and interest as provided by ch. 22, Laws of 1859, and also all taxes,” etc.
It is quite obvious that the circuit coui't considered that such an ordnr was proper in the case by reason of the claim 'xtiidér -the tax deeds and the evidence in relation thereto, and was, in fact, "required by "of!. SfSf’Laws’of 1874:'”'
The circuit court may have erred, and the order may have been irregular and improper; but it certainly cannot be treated as a nullity. It was such an order as would have been quite proper, and as the circuit court had jurisdiction and power to make, in certain conditions of the cause; and that court must have determined that such conditions existed; and if such determination was erroneous, there was a way of correcting such error and vacating said order; but while it is upon the record, it must be treated as valid and effectual, at least to postpone the entry of final judgment in the cause.
"Without either setting aside the order or performing the ' conditions and proving such performance to the court, and without any motion or other application to the court or notice to the appellant, the final judgment was entered by the clerk, and that, too, in vacation.
There can be no doubt of the irregularity of this judgment, *262and it should have been vacated by the circuit court upon the motion. Tallman v. McCarty, 11 Wis., 402; Salter v. Hilgen, 40 id., 363; Massing v. Ames, 36 id., 410.
"When the judgment is so vacated, the respondent will be in the condition to take such proper action to obtain a final judgment, as he may be advised.
By the Court. — The order of the circuit court appealed from is reversed, with costs.
ByaN, C. J"., and LyoN, J"., took no part.