Keeler v. Keeler

24 Wis. 522 | Wis. | 1869

Dixon, C. J.

There can be little doubt about the sufficiency of the complaint. The counsel for the defendant does not seriously contest it. It states a cause on the part of the wife for a divorce from the bond of matrimony, under the provisions of subd. 3, § 10 and § 11, ch. 111, R. S.; and, as no bill of exceptions was taken, the proofs are not before us.

The other question is as to the jurisdiction of the court over the person of the defendant. Did the court acquire such jurisdiction % We are of opinion that it did, on the ground that the stipulation signed by the defendant was an appearance in the action.

An objection taken to the stipulation is, that no affidavit was made verifying the genuineness of the defendant’ s signature. But as the defendant does not, through his counsel or otherwise, assume to deny the signature, we think it must now be taken to have been genuine. The want of such denial is an admission of its genuineness If the defendant did not sign the stipulation, or if it was obtained by fraud or imposition, or entered into through mistake, those were matters properly to be corrected in the court below, on motion supported by affidavits showing the facts. Ripley v. Burgess, 2 Hill, 360.

It being conceded, therefore, that the defendant signed the stipulation, the question is as to its effect. And it is a very different question from that presented in Weatherbee v. Weatherbee, 20 Wis. 499, and Litchfield v. Burwell, 5 How. Pr. 341. In Weatherbee v. Weather-bee no order of publication was made, while here there was, which would clearly distinguish the cases, provided the writing here signed by the defendant was no more than an admission of the service of a copy of the summons and complaint upon him out of the state, and a waiver of all other service. But the writing was something more. Besides being an acknowledgment of notice of the pendency of the action and of the objects thereof, it was a stipulation to try the cause at the next term of the court, and a waiver of any further notice of trial. This was an appearance in the action, within all the decisions upon the subject. It was a submission by the defendant to the jurisdiction of the court — an acknowledgment by him that the court had power to try and determine the action, and to render judgment in it. And the case of Weatherbee v. Weatherbee, although holding that the admission alone, by a party out of the state, of the service of process upon him there, and the waiver of all other service, does not give the court jurisdiction, by no means decides that a party so situated may not in some proper method enter his appearance in the action; but rather the contrary. It was said in the opinion that Mrs. Weatherbee could not waive the order of publication required by the statute, in any other way than by entering her appearance, or causing it to be entered by her attorney in the action. And the reason of the distinction is very obvions. The admission by the defendant of the service of process is but evidence of snch service. It is evidence of the same force, and no greater, than if proof of service were made in some other manner. In either case, the conrt acquires jurisdiction, if at all, through the service of the process; and in both alike, the service is void, if it appears that it was made out of the state without an order of publication. And the waiver by the party of any other service made out of the state does not cure the defect. But an appearance in an action is a very different matter. An appearance may be made without the issuing or service of any process whatsoever, whether by publication or otherwise. It may be made as well by a party residing without the state as one within it. An appearance is a waiver of all previous defects in the service of process, and of the process itself, if none has been issued. Upper Miss. Trans. Co. v. Whittaker, 16 Wis. 220.

The defendant having, therefore, made a valid appearance in the action, it follows that the judgment must be affirmed.

By the Court. —Judgment affirmed.