Grantier v. Rosecrance

| Wis. | Jan 15, 1871

Cole, J.

There can be no doubt that the record failed to show any legal service of the summons in the action; and had not this defect been waived by the appearance of the defendant Rosecrance, the order appealed from would have to be affirmed. But he, by his attorneys, moved the court to set aside the judgment upon several grounds, one of which was the following: “ 4th. Because the complaint in this action does not state a cause of action against the defendant Martin Rosecrance.” Coming’ into court and moving that the judgment be set aside upon such a ground was a general appearance in the cause, and cured all irregularity in the service of process. It is true, the notice states that the defendant appears “specially” for the purpose of setting aside the judgment; and had he limited the motion solely to the defects in the service of the summons, the appearance would have been a qualified one. But he did not ask to have the judgment vacated for that reason alone, but because the complaint did not state a cause of action against him. This was a full submission to the jurisdiction of the court, and was a,general appearance. It is substantially the same as though he had come into court before judgment was entered, and demurred to the complaint upon the ground that it stated no cause of action. He expressly asked the court, in his motion, to review the complaint and to vacate the judgment because the complaint was fatally defective. It is difficult to conceive how a more full or general appearance could be made, so far as the jurisdiction over the person of the defendant Rosecrarice was concerned. He must be held to have waived all defects and irregularities in the service of the summons upon him. Stonach v. Glessner, 4 Wis. 275" court="Wis." date_filed="1856-06-15" href="https://app.midpage.ai/document/stonach-v-glessner-6597314?utm_source=webapp" opinion_id="6597314">4 Wis. 275; Barnum v. Fitzpatrick, 11 id. 81; Tallman v. McCarty, id. 401; Upper Transportation Co. v. Whittaker, 16 id. 220; Conger v. C. & G. U. R. R., 17 id. 477; Cron v. Krones, id. 401.

By the Court. — The order of the circuit court is reversed, and the cause remanded with directions to reinstate the judgment.