75 Wis. 438 | Wis. | 1890
The affidavits read on the hearing of the motion to vacate the sheriff’s return and judgment, show conclusively that neither of the persons upon whom the summons was served was at that time the town clerk of the defendant town, either de jure or de facto, or the acting clerk thereof. This is scarcely controverted. It is unnecessary to state the contents of the affidavits more specifically for the reason that the return itself fails to show an effectual service of the summons. The statute requires that in an action against a town such service shall be made by delivering a copy of the summons to the chairman of the town and the town clerk. R. S. sec. 2637. Service upon both those officers is essential to give the court jurisdiction to render a judgment in the action, unless the defective service is cured by a general appearance of the defendant. In this ■ case the town made no such appearance.
The return, on its face, fails to show service on the town clerk of the defendant town. It shows a service on Edward Crump, who is described as “the clerk of said town, elected at the last annual town meeting, who claims he was not. qualified.” If he was not qualified, that is, if he had not filed his official oath and bond (R. S. secs. 809, 812, 830), he was not clerk de jure; and, failing so to qualify, he was not clerk de facto unless he had actually entered into the office under his election and was in the' discharge of the
As to the service upon Ida Lusk. Aside from the fact that the name indicates that the person served is a female, and therefore ineligible to hold the office of town clerk (R. S. sec. 808), the return merely shows that she has charge of the records of the town, ,and is acting town clerk. The statute does not authorize the service to be made upon the mere custodian of the records, or upon a mere acting clerk. It must be upon the real clerk.' There is nothing in the return to show that Ida Lusk was such clerk, either de jure or de facto.
Neither is there anything in the return to show that W. D. Stiles, therein named, was such clerk when the service was made upon him. On the contrary, the return shows affirmative^ that he was not. It is not stated when he was elected to the office; but the return shows that his term had expired, and his successor was elected, and that he was not the custodian of the town records or the incumbent of the office when served with the summons. The return shows that Ida Lusk was then such custodian and was performing the duties of the office. Of course, after his term had expired and his successor had been elected, and after the records had gone into the custody of another and he had ceased to exercise the office, he ceased to be town clerk, and the town is not bound by service of process upon him. The views above expressed are fully supported. by the cases of Watertown v. Robinson, 69 Wis. 230, and Amy v. Watertown, 130 U. S. 301.
It is claimed on behalf of the plaintiff that the court erred in vacating and setting aside the whole service of the summons, when it is unquestioned that due and proper service thereof was made upon the chairman of the town. We have here an unsuccessful attempt to commence an action, which has failed for want of service of process. -To constitute such service two acts are required, one of which has been performed, the other not. By entering judgment the plaintiff submitted the sufficiency of the service as a whole to the scrutiny of the court. The court correctly held the same insufficient to uphold the judgment, and so set aside both service and judgment. Probably had the court said nothing about the incomplete service in the order vacating the judgment, such service would still have ceased to be of any effect thereafter. We are aware of no rule of' practice which requires the court in such a case to analyze the defective service, when'called to pass upon its validity, and save any regular steps which may have been taken in attempting to make the same. It seems, rather, that the court should consider the service as a unit, and, if insufficient as a whole, may vacate it as was done in this case.
This is not a case of service upon one only of two defendants, in which case it would be effectual as to the defendant
It is claimed by counsel for the plaintiff that the service upon the chairman should not be disturbed, because of its supposed effect upon the running of the statute of limitations against plaintiff’s claim. ¥e do not perceive how it can have any such effect. "We are not aware of the existence of any statute which provides that an unsuccessful attempt to commence an action shall operate to suspend the running of a statutory limitation upon the plaintiff’s demand, except sec. 4240, R. S. But that section applies only to cases in which service may be made by publication of the summons. We agree with counsel for plaintiff that this action is not one of that class. The limitation of the statute will continue to run upon the plaintiff’s demand until his action thereon shall be commenced — that is to say, until the summons shall be fully served upon the town.
By the Court.— Order affirmed.