Borden v. Borden

63 Wis. 374 | Wis. | 1885

Cole, O. J.

The only ground relied on for impeaching the judgment is the want of jurisdiction. It is insisted that the circuit court never acquired jurisdiction of the person of Philo Borden by the service of the summons which was made. The summons was served by Constable McKnight, who made an affidavit of the time, place, and manner of service, as follows: “ Ellis J. McKnight, of lawful age, being duly sworn, on oath says that he served the summons hereto annexed upon Philo Borden and William Borden, the defendants therein named, by delivering to each of them a true copy thereof, and leaving the same with each of them at Wayne, in said county, on the 26th day of November, 1881. Deponent further says that he knows the persons so served to be .persons named as defendants in said summons.”

The objection which is taken by the learned counsel for Philo Borden to this proof of service is that it wholly fails to show either (1) that McKnight delivered to his client, a copy of the summons; (2) or that .he left with him a copy; (3) or with whom such copy was left. The statute, counsel says, imperatively requires that these facts should appear from the affidavit of the person who makes the service. When service is made by a person other than the sheriff, the statute certainly requires that the proof of service shall be the affidavit of the person making the service, “ showing place, time, and manner of service, that he knew the person served to be the defendant mentioned in the sum-moils, and left with as well as delivered to Mm a copy.” Subcl. 2, sec. 2642, R. S. Now, do not all these .facts plainly appear from the affidavit of McKnight, which we have given above? It seems to us that they do.

But some affidavits were used on the motion to set aside the judgment, and, among them, the affidavits of McKnight and of his son, who was with him when he made the service. From these it is insisted that it appears that no copy of the summons was either delivered to Philo Borden or left With him. We have no disposition to go into any discussion of the matters stated in these affidavits and in those made by Philo Borden. There is certainly a very positive and serious contradiction in the statements .made on the one side and on the other as to the time and circumstances attending the service of the summons. We feel bound to attach greater credit to the statements of McKnight and his son than to those of Borden, made, as they are, by persons not interested in the suit. It appears from these affidavits that McKnight and his son went to Borden’s house in the evening of the 26th of November; that McKnight informed 'Borden he had a summons in the action which he was going to serve; that he held the summons in his hand and Borden saw it; that then Borden refused to let him make service, pushed him partly out of the door, when McKnight informed him that he would leave a cojiy of the summons for him, and did so by attaching it securely to the handle of the door-latch, informing Borden of what he had done. This, in substance, is the account which McKnight and his son give of the time and manner of the service. The affidavits on both sides contain much impertinent matter, and, as we have said, flatly contradict each other,

But, without dwelling upon the details of the ti’ansaction,. and assuming, as we feel we must do, that the statements of McKnight and his son are more worthy of credit than those of Borden, the question arises whether the facts do not sliow a valid service of the summons. We think they do. It is of course impossible, without the use of violence, to compel a party to receive and retain papers offered him with a view of making- a service. Any act of violence to accomplish that end is not to be tolerated. And when a party refuses to accept a copy of a summons which is offered him in a civil and proper manner, after being informed what the paper is, there is no other way to make service but deposit the process in some appropriate place, in the presence of the party if possible, or where it will be most likely to come to his possession. If then the party to be served does not get the copy of the summons it will be entirely .owing to his own fault. He certainly, 'when everything has been done to make service upon him, should not be allowed to come into court and object that because a copy of the summons was not delivered to nor left with him, therefore the service was insufficient. “ If a defendant declines to receive from the proper officer a paper presented by him for service, he may deposit it in any convenient place in the presence of the party.” Mr. Justice Field in Norton v. Meader, 4 Sawy. 619. “ If a party refuse to accept papers when decorously offered him, after being distinctly informed what they are, he should be held to the consequences of his own perverseness; and then if they should be laid down for him and before him, such offer, information, refusal to accept, and leaving of the papers for him and in his presence, should be deemed legal service.” Davison v. Baker, 24 How. Pr. 41. See, also, Smith on Sher. & Cor. 196; Slaght v. Robbins, 13 N. J. Law, 340.

The defendant Borden offered to read the affidavit of his wife to corroborate his version of the transaction, and to show want of service of the- summons upon him. The affidavit was objected to, and was rejected by the court. It was clearly incompetent.

The order of the circuit court refusing to set aside the judgment is affirmed. There is, likewise, an appeal from the judgment, and it follows, from what has been said, that the judgment must be affirmed,

By the Court.— Ordered accordingly.