Hammond-Chandler Lumber Co. v. Industrial Commission
158 N.W. 292
Wis.
1916
Check Treatment
Maeshall, J.

Only a party aggrieved by a judgment can appeal tberefrom. Powers v. Powers, 145 Wis. 671, 130 N. W. 888; Larson v. Oisefos, 118 Wis. 368, 95 N. W. 399. Where tbe party appealing is not in any way aggrieved, tbe appeal should be dismissed. Amory v. Amory, 26 Wis. 152.

We are unable to discover wherein tbe Industrial Commission is aggrieved here. It could not have appealed from tbe order denying its motion to set aside tbe summons because such an order does not fall within tbe appeal statute, sec. 3069. It is not prejudiced by tbe judgment because, thereby, it, indirectly, obtained what it sought by its motion. Really, it finds no fault with tbe judgment and desires to have it affirmed.

Eor tbe reasons stated the appeal by tbe Industrial Commission must be dismissed. That does not militate against it, as respondent on the appeal by tbe Lumber Company and the Casualty Company, contending for an affirmance of tbe judgment upon tbe ground that it is right, whether rightly grounded by tbe trial court or not.

Tbe idea wbicb prevailed below was that a summons, signed by nonresident attorneys, is wholly void, not merely irregular and within tbe amendable defects provided for by sec. 2830, Stats., reliance being placed on Whitney v. Brunette, 15 Wis. 61, 70. It was there said, by Mr. Justice PaiNE, that a matter wbicb is wholly void is not subject to amendment under tbe statute. Tbe remark was not neces*600sary to the decision and not concurred in- by Chief Justice DixoN. It voiced a common-law rule which was, in great measure, at least, displaced by the Code. It has not been applied except in very extreme cases though, instead of being rejected or modified, expressly, it has been rendered quite harmless by defects, in most cases, being classed as irregularities, and hence subject to be disregarded under sec. 2829, Stats., or to be cured by amendment under sec. 2830, Stats.

The latter section, in its letter, is very broad. It should be read in its broad scope to effect the evident remedial purpose and spirit of the Code, which was to abolish, utterly, the practice which often had enabled a party to vexatiously prolong litigation and defeat justice, or render its attainment attended by unreasonably burdensome public and private expense. Under such section the only limit of the power of amendment is that it must be exercised “in furtherance of justice” and the only condition of the exercise of such power is that it shall be “upon such terms as may be just” and the scope of it includes all proceedings in any action and a mistake in any respect. If its plain language and purpose had been given effect by reference thereto in treating defects of the nature that we now have to deal with, there would be no doubt as to whether such defects fall within its beneficent provisions and, if necessary for harmony that they should bo treated as rendering the proceeding affected merely irregular instead of a nullity. The statute itself makes no distinction and courts should not, within the scope of power, to do the thing, defectively done.

That the statute should be dealt with as suggested, there are many illustrations in our decisions. Smith v. Smith, 19 Wis. 522; Morgan v. Bishop, 61 Wis. 407, 21 N. W. 263; Ill. S. Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534; Gates v. Paul, 117 Wis. 170, 94 N. W. 55.

We might extend this opinion to a very great length by citing and discussing authorities dealing with defects in sum-*601mouses. In almost every case where Code authority existed, as here, the defects were held curable by amendment. In a review of authorities in 1 Ency. PL & Pr. 658, it is well said that “Ey the common law, process was not amendable where it appeared upon the face of it . that it was absolutely void. . . .” An amendment would be allowed where there was anything to amend by, “but . . . amendments have been allowed where there was nothing to amend by.” “Under the modern statutes authorizing amendments ... an amendment will generally be allowed whenever it is in furtherance of justice, if the court has jurisdiction of the parties and of the action in which the amendment is sought to be made.” In this connection, it must be kept in mind that an irregularity does not go to jurisdiction, and that, if a party is brought into court in an irregular way, the court thereby obtains jurisdiction, at least, to cure the irregularity, under sec. 2830, Stats.

A summons is not a process, — it is a mere statutory notice. Rahn v. Gunnison, 12 Wis. 528. The summons in this case was regular in every way except for not being signed by Wisconsin attorneys with their address specified. The defendants were not misled in any way. There was power to do what was done, and hence the defective manner of doing it should not render it, necessarily, classable with absolutely void things to which the doctrine announced by Mr. Justice PaiNE in Whitney v. Brunette should bé strictly confined.

What has been said does not seem to need support by authority, but if it were otherwise, Prentice v. Stefan, 72 Wis. 151, 39 N. W. 364, and Harvey v. C. & N. W. R. Co. 148 Wis. 391, 134 N. W. 839, are ample. In each the defect was treated as a curable irregularity which did not go to jurisdiction. In the latter, the summons was treated as not» having been signed at all and yet as not jurisdictionally defective. Certainly, if a summons so defective is good for jurisdiction if served under such circumstances as to inform the defend*602ant who the adverse party is, and the court invoked, a summons sucb as there was in this case, is good to the same extent.

• Our conclusion is that the rule that a void proceeding is not-amendable applies only where there is no power to do the thing which was attempted to be done; that, given power to do the thing, and a good-faith, but defective way of doing it, as in this case, and the infirmity is curable by amendment under sec. 2830, Stats., for the purpose and subject to the condition and restrictions mentioned therein; that courts should deal with the statute in a broad way so as best to promote the attainment of justice, — not narrowly so as to minimize its scope to less than that covered by its letter.

Sec. 2394 — -19, Stats., which provides for the commencement and prosecution of such actions as this, limits the time of commencement to twenty days from the date of the award, requires the Industrial Commission and the persons interested in supporting the award to be made parties defendant, and makes “service upon the secretary of the commission, 034 any member of the commission, . . . completed service.” The language of the statute is somewhat ambiguous, in that, while it requires the “adverse party,” meaning the one in whose favor the award was made, to be made a defendant, and provides, specially, for service on the commission, it is silent as to service on such adverse party and says of that on the commission, in the manner specified, “shall be deemed completed service.” However, it is considered that, by necessary inference, the legislature contemplated that the action would be governed by the general provisions of the Code where not otherwise provided. It would be unreasonable, if not absurd, to require the claimant under the award to be made a party defendant with no obligation to make service on him as a jurisdictional requisite to his being afforded his day in court. The fair meaning of the statute is that service on the commission in the manner specified “shall be deemed completed serv*603ice” on it, and that the requirement as to making the “adverse party” a defendant includes that of making service on such party as in ordinary cases.

What has been said sufficiently covers the contention that, the application to allow the summons to be perfected by amendment was properly denied, because the time for commencing the action was limited to twenty days and without a proper summons there could be no action started within that time. A mere irregular manner of commencing the action is one thing, and a far different thing from not commencing an action at all. If jurisdiction attaches within the prescribed time, that is sufficient. This is in harmony with Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006, and Relyea v. Tomarhawk P. & P. Co. 102 Wis. 301, 78 N. W. 412, and other cases to which our attention is called.

It is finally claimed by respondents that the judgment should be affirmed upon the ground that it would have been the duj;y of the court to have denied the application.to amend, on the merits, because of the long delay in making it. It seems otherwise. Appellant supposed, and not without reason, that the service made would be held sufficient, up to a day before the application for leave to amend was made. There was no inexcusable delay and no delay which materially prejudiced respondents. ' We may well assume that had the trial court supposed it possessed power to allow the summons to be perfected, that power would have been exercised on such terms as would be just.

By the Court. — The appeal of the Industrial Commission is dismissed. The judgment is reversed on the appeal of the Hammond-Chandler Lumber Company and Lumbermen’s Mutual Casualty Company without costs, and the cause is remanded with directions to vacate the order, entered on the motion of defendant Nelson, quashing the summons and for further proceedings according to law.