126 Wis. 436 | Wis. | 1905
The question here for solution is this: The trial court having vacated a judgment entered before its clerk under sec. 2891, Stats. 1898, as void because the proof of service of the summons upon the defendants, purporting to have been made by a person other than an officer, was insufficient; and such person having made a new proof of service, good in form, upon which a second judgment was entered before such clerk, which upon a contest before the court as to whether there was such service in fact, and as to vffiether, even if there was such service, the previous order of the court did
No question is raised as to the validity of the return of service as finally made, except that it was not competent for one not an officer to amend his return. No reason is suggested why it should be held that the power to amend a return of service is different as to an officer than one not an officer, except that counsel has been unable to find any authority in the written law, or otherwise, permitting such an amendment by the latter. Counsel’s labor was evidently just as unfruitful as regards finding authority that the power of amendment in such cases is limited to officers. It would seem that the-statute which authorizes a private person in lieu of an officer to serve the summons and prescribes the essentials of the return, by necessary implication gives such person authority to amend such return to the same extent as an officer might under the same circumstances. In the absence of express authority against that view we should be inclined to so hold. The dearth of authority to the contrary suggests that no court has considered there was serious doubt about the matter,, rather than that the power of amendment does not exist, since the reasons therefor are rather greater in case of a private person than of an officer.
In Hall v. Graham,, 49 Wis. 553, 5 N. W. 943, it was inferentially held in harmony with the views here expressed. The judgment there was reversed because entered by the clerk without a proper return of service of the summons upon the defendant having been filed. The service was claimed ta
Tbe further suggestion is made that in any event it was not proper to amend tbe return without leave of court granted upon notice to tbe adverse party, since tbe person claimed to have made tbe service bad parted with tbe papers and they bad become incorporated into tbe files of tbe court. By reason of tbe conclusion we have reached upon tbe main point, that might be passed without notice, but since it is presented for decision and -is an important practice matter it is thought best to decide it. Tbe general rule doubtless is that while tbe papers are in tbe possession of tbe person who made tbe service, or bis return is in bis possession, be can amend tbe latter in accordance with tbe facts on bis own motion or at tbe request of tbe party interested, but that after tbe papers have been filed it cannot be amended except upon leave of court, and tbe better practice is only upon leave granted after opportunity for the adverse party to be beard, although failure in respect to tbe latter feature would not constitute prejudicial error. 18 Ency. Pl. & Pr. 954. However, where tbe return filed has been held insufficient to show jurisdiction over the defendant, and tbe judgment rendered on tbe defective proof has been stricken from tbe records, no reason is perceived why tbe plaintiff cannot withdraw the papers from tbe files for the purpose of making a new service, or making tbe proper proof of tbe original service, if tbe facts will permit of tbe latter.
What has been said leaves tbe main question involved in tbe proposition stated at tbe opening of tbe opinion to be decided. There was proof of service, as indicated, good in form, presented to tbe court on tbe application for judgment. Tbe adverse party bad ample opportunity to be beard. Tbe
If the learned court in disposing of this case had understood the scope of its authority, as before indicated, the application for judgment would, doubtless, have been granted.
By the Gourt. — The judgment is reversed, and the cause remanded with directions to render judgment in favor of the plaintiff in accordance with its application.