14 Wis. 28 | Wis. | 1861
By the Court,
This case has once been before this court, and is reported in 6 Wis., 211. After the decision there made, a motion for rehearing was argued, and overruled for tbe reason that it was conceded that the decision was correct upon one ground, and therefore tbe court would not re-examine tbe others, either to “qualify or affirm ” its previous opinion. 8 Wis., 218. Since then there has been another trial, in which the defendant had a verdict and judgment, which is now brought here by a writ of error.
The principal question in the case is as to tbe admissibility and effect of the record of the foreclosure suit, under tbe sale in which tbe defendant claimed title. The plaintiff bad acquired tbe title of Rague, if be bad any; and he had, unless it was cut off by tbe foreclosure suit. This depends upon the question whether it sufficiently appears, or is to be presumed, that the court had jurisdiction over bis person.
Upon this question we deem it unnecessary to discuss at length the various positions taken by counsel. We have very fully considered the subject in the cases of Rape vs. Heaton, 9 Wis., 328, and Falkner vs. Guild [10 Wis., 563], and some other cases recently decided. And we think it follows from tbe principles we there sustained, that where tbe record discloses a particular mode adopted to acquire
But it is undoubtedly true that reasonable presumptions are to be indulged in, not contradictory to the record, to sustain the judgments of superior courts. And although legal service of process was not made on a defendant, yet if there is anything in the record fairly warranting the presumption that he appeared and thus conferred jurisdiction over his person, then this presumption should be indulged in, until the contrary is shown. We think there was something of this kind in this record. The entries in the journal by the clerk, which were offered in evidence, show that an attorney appeared in behalf of some of the defendants and opposed the motion for leave to file the order of publication nunc 'pro tunc. For aught that appears on the record, this attorney may as well have appeared for the defendant Bague as for any other defendant. And where the record shows
Having come to this conclusion, it becomes unnecessary for us to pass upon the question whether the parol evidence offered in support of the record, to show that Bague did appear by attorney, was properly admitted or not. This court in its first decision, before alluded to, held it admissible. But the grounds for its decision on the motion for a re-hearing would seem to indicate that the questions not passed upon in deciding that motion were intended to be in some measure left open. But it is unnecessary for us to re-examine them here; for as we have come to the conclusion that in view of the entries on the record itself the presumption was that the attorney appearing against the motion appeared for Bague, it follows that the record was sufficient on its face to sustain itself, and that no parol evidence to show that Bague appeared was necessary, until the plaintiff had first offered evidence that he did not appear. We shall therefore not pass upon its admissibility, and shall remark upon it no further than to say that it fully illustrates the reasonableness of the presumption on which we have based our decision. For notwithstanding there was no legal service of process on Bague, this evidence shows that he did appear by attorney, and thus fully submitted himself to the jurisdiction of the court.
The attorney for the plaintiff requested the court to instruct the jury “that if they found that Bague was not served with process, and that there was no appearance for him in fact, they should find for the plaintiff” This, as applicable to the question of jurisdiction, we think is a correct proposition of law, and should have been given to the
Tbe decision of these questions necessarily disposes of tbe case, and it is unnecessary to say anything upon other points discussed.
Tbe judgment is affirmed, with costs.