59 Wis. 513 | Wis. | 1884
The following opinion was filed December 11, 1883:
The sole question in this case is, Did the circuit court acquire jurisdiction of the defendant city by the service of the summons and complaint which was made? The sheriff certifies in his return, in effect, that on the 5th day of June, 1882, in his county, he served the summons and complaint on the defendant city, by delivering a copy of the summons and complaint to Henry Bieber, city clerk, and by delivering a copy of said summons and complaint to and
The charter of the city provides, when an action shall be commenced against the city, the service of process may be made by leaving a copy thereof with the mayor. Sec. 8, subch. 9, ch. 233, Laws of 1865. Ey the general statute service is made by delivering a copy of the summons and complaint to the mayor and city clerk. Subd. 3, sec. 2637, R. S. The question whether the Revised Statutes control as to the manner of service is not a material inquiry here, because both the charter and general provision require the service to be made upon the majmr, but no service was made upon that officer, as appears by the return of the sheriff. The principle is too elementary to need discussion, that a court can only acquire jurisdiction of a party — where there is no appearance —by the service of process in the manner prescribed by law. A great number of decisions are cited on the briefs of counsel for the city in support of this position, but the rule is not questioned on the other side.
But the learned counsel for the plaintiffs below insist, in view of the legislation amending the charter of the city (to which they refer, and of which this court takes judicial notice), and of the facts stated in the sheriff’s return, that the service must be held sufficient in law. It is said we must assume that there was no mayor upon whom service could be made, and that the office was vacant. Whatever the real fact may be we do not feel authorized in making such an assumption here. It is true, the sheriff returns that he made service upon Stacy, the chairman of the board of street com
By the Court.— The judgment of the circuit court is reversed.
A motion for a rehearing was denied February 6, 1884.