Johnson v. Turnell

113 Wis. 468 | Wis. | 1902

Maeshall, J.

It will appear from the foregoing statement that, if the question, of whether the paper purporting to he a summons was placed in the hands of the officer for service thereof upon the respondents, and was a legal summons so that jurisdiction was obtainable by the service of the ostensible summons, was open to investigation by parol evidence, and the question upon such evidence was properly decided in favor of respondents, the statutory bar to the action upon the note was complete before anything occurred to interrupt it, and the judgment must be affirmed regardless of any other question presented for consideration upon the record. Time ran against the note till a good-faith attempt was made to enforce it by action. Such an attempt required, at least, the delivery of a judicial process to an officer competent to serve it upon the defendants, with the intention that he should seasonably make such service, the process being good in fact as well as in form, so that jurisdiction of the respondents would he obtainable by such service. Sec. 4240, Stats. 1898; Sherry v. Gilmore, 58 Wis. 324.

The proposition is urged with much confidence that the docket entries made by the justice, as to when the summons was issued, are conclusive as regards whether the process was legal. The authorities cited by counsel to support that do not apply to this case. Here the actual fact as to whether a summons was delivered to the officer at the time claimed by appellant is the material thing. The paper purporting to be a summons, the docket entry of the justice as to when it was issued, and the evidence as to when it was delivered to the officer, prima facie establish the facts which they indicate, but are by no means conclusive. The law is well settled, in cases where the defense is the bar of the statute of limitations, that the actual fact, as regards when the action was commenced or attempted to Toe commenced, may be established by parol evidence. ' This court passed upon that question in Woodville v. Harrison, 73 Wis. 360. For other authorities to the same effect see Wood, Limitations, § 291, and cases cited; Angelí, Limitations, § 315.

Counsel cite to our attention cases where this court has held that a justice’s docket entries of judicial proceedings in a cause cannot be contradicted by parol evidence. For example, in Smith v. Bahr, 62 Wis. 244, it was held that, upon certiorari to a justice, his record returned imports verity. Cassidy v. Millerick, 52 Wis. 379, is the same kind of a case. Counsel might have added largely to the number of his citations of that kind. Authorities without number could be referred to as to the eonclusiveness of an officer’s return of service. But it by no means follows that the record of a justice, or return of service of an officer, is conclusive for all purposes. This court has repeatedly held that the return of an officer upon a summons, or execution, may be collaterally impeached where jurisdiction of the party arises. That has been a well-understood exception to the general rule for which counsel contends, in this state, since Rape v. Heaton, 9 Wis. 328. For subsequent cases on the subject see Pollard v. Wegener, 13 Wis. 569; Veeder v. Lima, 19 Wis. 280; St. Sure v. Lindsfelt, 82 Wis. 346; Toepfer v. Lampert, 102 Wis. 465. In the last case this court said:

“The principle is that the record is no record unless the party to be bound by it was served with process, and this fact is open to investigation.”

The record of the justice in this case was no record on the jurisdictional question of when the summons was issued, if the paper served upon respondents was not a legal process. If no jurisdiction of them was obtained by such service, manifestly, it is because the instrument served was not what it purported to be. So the question of when the justice obtained jurisdiction of the respondents became material in this case and was a subject for parol evidence.

It is insisted that the evidence does not support the finding that the summons was issued in blank and filled up over the justice’s signature by appellant’s attorney. We cannot see our way clear to disturb that finding. The evidence is undisputed that at the time the action was commenced it was the general custom of appellant’s attorney to obtain signed blanks from the justice and to fill them up as needed; that he was unable to say but that he followed that custom in this case; and that the written part of the paper, except the signature, was in the attorney’s handwriting. In that situation the trial court was justified in coming to the conclusion that the reasonable probabilities substantially all pointed to the fact as found.

On the question of whether the summons was in fact a legal process we do not understand that there is a serious controversy. Sec. 3594, Stats. 1898, governs the matter. It provides that the process “shall run in the name of the ‘state of Wisconsin,’ be dated on the day it is issPed, be signed by the justice issuing the same, ... be directed to the sheriff or any constable of the proper countyand that “the justice issuing such process, before delivering the same to any person, shall enter therein the names of both plaintiff and defendant, the name of the town, city or village where it is issued, the date of issue and the day and hour of the return thereof.” That statute is mandatory. It leaves no room for controversy but that the summons made in this case is void. It is not a summons in a legal sense. It has been so decided elsewhere under a similar statute, as counsel freely admits. Craighead v. Martin, 25 Minn. 41.

Mothing more need be said, nothing" effective was done to commence this action till defendants voluntarily appeared in the justice’s court. The bar of the statute was then complete.

By the Court. — The judgment is affirmed.