Metzler v. Metzler

132 Wis. 601 | Wis. | 1907

SiebeckeR, J.

The facts disclose that plaintiff secured an order for the service of the summons on defendant by-publication by securing an affidavit that defendant’s residence- and postoffice address were unknown and that plaintiff, ip-the exercise of due diligence, was Tumble to mate personal service thereof on defendant, when in truth and fact he then knew her residence and postoffice address, and that by this false and fraudulent means he obtained service of the summons by publication. Upon this state of facts the court held that the plaintiff had committed a fraud upon the court in securing service of its process, and upon this ground declared the proceedings in the action void and held that the proof of service and the judgment of record in the case should be held for naught; and it declared them vacated and set aside. Under the circumstances this was proper action by the court, for the reason that a court will not permit such an abuse of its process. When it is brought to its attention “the court should vindicate the integrity of its process by setting aside its service and turning the plaintiff out of court as a punishment for his fraud.” Townsend v. Smith, 47 Wis. 623, 3 N. W. 441; Saveland v. Connors, 121 Wis. 28, 98 N. W. 933, and cases cited; Reed v. Williams, 29 N. J. Law, 385.

It is urged that by calling attention, for the purpose of this motion, to plaintiff’s misconduct in remarrying against the decree of the court, defendant appeared generally in the action and thereby waived all right to the relief sought by her, and that this general appearance conferred jurisdiction validating the proceedings and judgment in the case. This claim has no force, for the reason that the defendant’s action in calling attention to plaintiff’s misconduct in no way affects the right and duty of the court to set aside the service and to vacate the judgment on account of plaintiff’s fraudulent and wrongful conduct in obtaining service of process in the action. Whether defendant appeared specially or generally in this proceeding is therefore wholly immaterial, and that fact need not be determined on this appeal. Townsend v. Smith, supra.

By the Court. — The order appealed from is affirmed.