80 Wis. 150 | Wis. | 1891
Did the court acquire jurisdiction of the person of the defendant Bowen in the suit of G. Aultmmi da Go. against her and Cox, by the service which was made upon her? The judgment in that suit was rendered and docketed on the 14th of June, 1878, before the premises mentioned in the complaint were conveyed to the plaintiff. The summons and complaint were served by the deputy sheriff, who in effect certifies in his return that he personally served these papers upon the defendant Elizabeth Bowen by delivering and leaving with her true copies of the same, having explained the contents to her, and giving the date of service. The return is signed, “ Matt. Birchard, by J. L. Rewey, Deputy Sheriff.”
It is objected that there is no proof that Matt. Birchard was sheriff of the county, and that the deputy sheriff should have made an affidavit showing the place, time, and manner of service, in order to make the service good. We deem this objection untenable. The statute makes it the duty of the sheriff to appoint one deputy in every city and village in his county containing over 1,000 inhabitants, and one in each assembly district other than the one in which the under-sheriff resides. Secs. 722, 723, R. S. This appointment is in writing, and is to be filed and recorded in the office of the clerk of the circuit court. Secs. 724, 725, R. S. In this case the return was made in the name of Matt. Birchard, and if the word “ sheriff ” had been added we presume plaintiff’s counsel would have taken no objection to it. But we consider the return to be in due form, and it is presumptive evidence that it is correct. The court will take judicial notice of the election of the sheriff of a county and the genuineness of his signature, and his official character need not be proven. 1 G-reenl. Ev. § 6.
It is claimed by the. counsel for the defendant that the plaintiff has no right to a homestead in any of these lands. But the fact is abundantly established that the judgment debtor occupied the ninety-nine acres which she conveyed as and for a homestead for some years before she made the conveyance to the plaintiff. It appears that she made, no selection of any particular tract for a homestead; and the plaintiff has occupied them in the same manner as she did,— as a homestead. Now, as no selection of a homestead was made when the execution sale took place in December, 1887, though the plaintiff might then have claimed a homestead and had the officer set the premises selected apart to him, we still think he can have a homestead right; but he must be confined" to a legal subdivision of the forty acres which will include his dwelling-house or residence and appurtenances. In Kent v. Lasley, 48 Wis. 257, that rule is established. In that case the chief justice says that “the right is, however, limited to the land on which the dwelling-house and its appurtenances are situate; and when the dwelling-house, which is the controlling quality of the
By the Court. — rThe judgment of the circuit court is therefore reversed, and the cause is remanded with directions to enter judgment in accordance with this opinion.