The following opinion was filed December 11, 1883:
Cols, C. J.
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 *516leaving the same with W. D. Stacy, chairman of the board of street commissioners of the defendant city, while said board of street commissioners was in session, and while said W. D. Stacy was presiding as chairman at a regular meeting of said board of street commissioners, in the absence of the mayor of the defendant city. The sheriff further certifies that, after diligent search, he could not find the mayor of the defendant city. The question is, Was this a good service?
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*517missioners, while the board was in session, and while Stacy was presiding as chairman, at a regular meeting of such board, “in the absence of the mayor.”’ Further, “ that after diligent search ” he could not find the mayor of the city. But all this is perfectly consistent with the fact that there was actually a mayor of the city who was temporarily absent, and upon whom the prescribed service might be made after a little delay. Indeed, the natural inference from the facts stated in the return is that there was no vacancy in the office of mayor. This circumstance distinguishes the case from Worts v. City of Watertown, 16 Fed. Rep., 534, where it appeared from the marshal’s return that the office of mayor was vacant, and that there was no president of the common council, nor presiding officer of the common council, in office. It is obvious, therefore, that it was impossible, in that case, to make the prescribed service upon the mayor. The court, doubtless, thought it would be a strange anomaly in the law that a municipal corporation should exist which was capable of incurring a legal liability, and still was' not amenable to judicial process. And the learned counsel for the plaintiffs below, here insist that it is not within the power of the legislature, by any sort of enactment, to create a municipal corporation, with all the powers and franchises incident to such a body, and exempt it from the power of being sued. This certainly raises a very serious question, especially in view of sec. 9 of the bill of rights [Const, of Wis., art. I, sec. 9]; but we are not called upon to decide it at this time; for there is nothing here to show that the proper statutory service upon the mayor might not have been made, and, as it was not, we must hold that the circuit court failed to acquire jurisdiction of the defendant city.
By the Court.— The judgment of the circuit court is reversed.
A motion for a rehearing was denied February 6, 1884.