Dauphin v. Landrigan

Eschweiler, J.

(dissenting). .It being conceded that there was a valid service of the summons upon the defendant personally in Wisconsin, the court then and there acquired jurisdiction of the defendant, and whether the defendant thereafter did or did not cause to be served a notice of retainer, demand a copy of the complaint, or take any other steps in the action is entirely immaterial. Plaintiff’s extension of time as indorsed on the summons could have no effect on the question of whether the court had jurisdiction; that was something the plaintiff could not give nor take away. *638The plaintiff may, it is true, by sec. 2635 (now sec. 262.07, Stats.), by indorsement on the summons fix a time in the future for its service, which is a direction to the process server, but when once duly served the defendant is in the court’s jurisdiction and not that of the plaintiff.

Sec. 2629 (now sec. 262.01, Stats.) provides:

“A civil action in a court of record shall be commenced by the service of a summons. From the time of such service . . . the court shall be deemed to have acquired jurisdiction and to have control of all subsequent proceedings.”

The question of “appearance” by defendant, so far as the commencement of an action against him and its pendency thereafter is concerned, is material only when there has been no service or faulty service. Such default in or imperfect service of process may be waived and jurisdiction established by he himself coming in; that is, by his voluntary appearance in an action.

If an alleged defendant challenges the validity or sufficiency of the alleged service of process upon him, he may, by special appearance confined to that question alone, be heard by the court which it is asserted has jurisdiction, and that because of the fundamental importance of the court having really acquired jurisdiction in order that its judgments may be binding. But so zealous are the courts in obtaining and preserving jurisdiction that the slightest action by an alleged defendant before such challenge is made or the asking therewith of the slightest relief which is consistent with jurisdiction are each and all held to be such “appearances” in the action as to foreclose the named defendant from his challenge, however good his grounds may' have been.

In Bestor v. Inter-County Fair, 135 Wis. 339, 341, 115 N. W. 809, the defendant, asserting his appearance to be special, moved to amend the return on the summons to conform with the facts. This, however, was held to be a *639general appearance and a waiver of jurisdictional defects, the prayer for amendment being a step consistent only with the idea of jurisdiction.

The defendant must stay away from all other questions than the one of jurisdiction. Corbett v. Physicians' C. Asso. 135 Wis. 505, 511, 115 N. W. 365.

An application for change of venue was sufficient appearance to waive defective service in State ex rel. Engle v. Hilgendorf, 136 Wis. 21, 23, 116 N. W. 848. Mere presence by a defendant in justice’s court on return day, the docket entry being “all parties present in court,” held an appearance sufficient to cure defects in service in State ex rel. Haeselich v. Schweitzer, 131 Wis. 138, 111 N. W. 219.

The effect of the appearance cannot be controlled by the designation given it by the moving party. Driscoll v. Tillman, 165 Wis. 245, 248, 161 N. W. 795.

So far, therefore, as the indorsement in question on the summons is concerned, it had nothing to do with the question whether the court had jurisdiction of the defendant or not; that jurisdiction attached at the moment of service and was in no wise dependent upon what defendant might or might not do. It did, however, have a substantial effect upon the question as to when the defendant would, by failure to plead, be in default. Such was the substance and real nature of what was thereby granted by the indorsement, if we consider substance rather than mere phrases.

The defendant, after service upon him, had the right to defend the lawsuit in person or by attorney, both under the constitution, art. VII, sec. 20, and by statute, sec. 2585 (now sec. 256.27). By agreement between defendant and plaintiff’s attorney, for the latter in his affidavit of default says that it was by stipulation, which is but the technical term to designate a contract made during and concerning a lawsuit, the plaintiff was postponing the time in which *640a default judgment could be taken and defendant was obtaining an extension of the time within which he might otherwise be required to answer. The question of jurisdiction by the court was in no wise affected. Having obtained this relief, the defendant could not thereafter successfully challenge the jurisdiction of the court so far as the validity and sufficiency of the service was concerned. In State ex rel. Att’y Gen. v. Messmore, 14 Wis. 115, 120, after service of summons irregular on its face, defendant obtained by stipulation further time to answer. This was held to be an appearance and therefore a waiver of the objection.

The defendant, therefore, was within the jurisdiction of the court instanter upon service; he obtained further time, that which was consistent only with the idea of jurisdiction by the court which had control of the proceedings; he therefore had so appeared as to be entitled to notice of application for judgment, and in default thereof to have the judgment reversed because he has not had his day in court.

I am authorized to state that Mr. Chief Justice Vinje and Mr. Justice JoNes join in this dissent.