Oelbermann v. Ide

| Wis. | Sep 22, 1896

MaRshall, J.

If the judgment in the principal action is void for want of jurisdiction of the court to enter it, then the judgment appealed from must be reversed. It is claimed on the part of appellant that such is the case, because the verification to the complaint was insufficient to support the-order for service by publication, in that it purports to have been made in Hew York before a commissioner of deeds for this state, and that his official character was not authenticated by an official seal; that though a seal was impressed on the paper, containing the words, “S. Steinhammer, Commissioner for in the State of New York,” and the blank space' in such impression was filled up with pen and ink by writing in the word “ Wisconsin,” it is not a seal of office, within the meaning of the statute upon the subject (sec. 182, R. S.), sufficient to show the official character of the commissioner.

An order for the service of a Summons by publication can only be granted on a complaint duly verified, and filed, and an affidavit, together showing the facts required to exist. R. S. sec. 2640. Without such verified complaint on file at the time of making such order, it is a nullity. Cummings v. Tabor, 61 Wis. 185" court="Wis." date_filed="1884-10-14" href="https://app.midpage.ai/document/cummings-v-tabor-6604484?utm_source=webapp" opinion_id="6604484">61 Wis. 185; Manning v. Heady, 64 Wis. 630" court="Wis." date_filed="1885-12-23" href="https://app.midpage.ai/document/manning-v-heady-6604958?utm_source=webapp" opinion_id="6604958">64 Wis. 630; Witt v. Meyer, 69 Wis. 595" court="Wis." date_filed="1887-11-01" href="https://app.midpage.ai/document/witt-v-meyer-6605802?utm_source=webapp" opinion_id="6605802">69 Wis. 595. If the verification of a complaint is made before an officer outside this state, unless his official character is authenticated by his official seal, if the law provides for that method of establishing such character, such complaint cannot be treated as verified according to law. Fellows v. Menasha, 11 Wis. 558" court="Wis." date_filed="1860-06-04" href="https://app.midpage.ai/document/fellows-v-president-of-menasha-6598163?utm_source=webapp" opinion_id="6598163">11 Wis. 558; Knowles v. Fritz, 58 Wis. 216" court="Wis." date_filed="1883-09-25" href="https://app.midpage.ai/document/knowles-v-fritz-6604136?utm_source=webapp" opinion_id="6604136">58 Wis. 216.

Sec. 182, R. S., provides that, before the commissioner is authorized to exercise any power, he shall, in addition to depositing in the office of the secretary of state a prescribed oath of .office, deposit an impression of his seal of office. Sec. 183, R. S., provides that his acts done pursuant to the laws of this state, certified under his hand and seal of office, shall be as valid as if done by a proper officer of this state. The same section provides that the commissioner may administer oaths required to be used in this state. From this it is obvious that only by force of the statute can the verification be made before a commissioner in another state. The law that provides that it may be so made provides the manner in which the official act must be authenticated, and this court has no authority to dispense with the statutory requirement. Counsel for respondents treats the point lightly, but we are unable to say that an express statutory provision ■may be treated as a mere formal matter. It positively requires an official seal to be used by the commissioner, in ■order to authenticate his official acts, without providing what such seal shall contain. Therefore, unless the seal used is sufficient, within the authorities on the subject, we must hold, in conformity to previous adjudications of this court, 'that the complaint was not verified as the statute requires.

It needs no argument or citation of authority to support the proposition that an official seal, when required by statute, no particular form or words being prescribed, must contain enough to show the official character of the officer, and must be capable of making a distinct and uniform impression upon the paper on which the certificate is written, or ■on some tenacious substance, as wax, or on wafers, or some .adhesive substance, attached thereto, capable of receiving an impression. E. S. sec. 4971, subd. 16; Pierce v. Indseth, 106 U.S. 546" court="SCOTUS" date_filed="1883-01-18" href="https://app.midpage.ai/document/pierce-v-indseth-90710?utm_source=webapp" opinion_id="90710">106 U. S. 546. A seal made by a pen, or a written scrawl, does not fill the requirements of an official seal. Mason v. Brock, 12 Ill. 273" court="Ill." date_filed="1850-12-15" href="https://app.midpage.ai/document/mason-v-brock-6947513?utm_source=webapp" opinion_id="6947513">12 Ill. 273; 21 Am. & Eng. Ency. of Law, 909; Hinckley v. O'Farrel, 4 Blackf. 185" court="Ind." date_filed="1836-12-24" href="https://app.midpage.ai/document/hinckley-v-ofarrel-7029994?utm_source=webapp" opinion_id="7029994">4 Blackf. 185. A design printed in ink is not a seal of office. Richard v. Boiler, 51 How. Pr. 371" court="None" date_filed="1876-05-15" href="https://app.midpage.ai/document/richard-v-boller-6140472?utm_source=webapp" opinion_id="6140472">51 How. Pr. 371. “A seal .can only be made' upon the paper itself, when the design is impressed upon the paper and does not require any other ■substance to exhibit it.” Richard v. Boiler, 6 Daly, 460" court="None" date_filed="1876-05-15" href="https://app.midpage.ai/document/richard-v-boller-6140472?utm_source=webapp" opinion_id="6140472">6 Daly, 460. These authorities, to which many more might be added, clearly show that nothing short of an impression on the paper will constitute an official seal. Any word or figures made by pen or otherwise than impressed so as to show in the paper itself or some substance attached to the paper, ■cannot be considered as forming any part of the seal. E. S. •sec. 4971, suhd. 16.

Applying what has been said to the instant case, the word Wisconsin,” written in after the impression was made on the certificate, obviously adds nothing to the seal; for, if one part could be thus made, it all might be, and the requirement that the seal shall be impressed on the paper would be entirely unsatisfied. It follows that the question must be answered, Are the words, “S. Steinhammer, Commissioner for in the State of New York,” impressed on paper, sufficient to indicate the official character of the-officer? Clearly not. That appears too plain for argument. It is wanting in the word written in, “Wisconsin,” and without it the impression is meaningless. Without it no information is conveyed by such impression, in respect to the state for which the officer is commissioner, or whether he is-a commissioner of deeds at all. Such was the conclusion reached by the supreme court of the state of Iowa in a similar case. Gage v. D. & P. R. Co. 11 Iowa, 310" court="Iowa" date_filed="1860-12-15" href="https://app.midpage.ai/document/gage-v-dubuque--pacific-railroad-7092197?utm_source=webapp" opinion_id="7092197">11 Iowa, 310, cited by counsel for appellant. In deciding the question under consideration, BaldwiN, J., said, in effect: 1 If a portion of the-words necessary to be used in the body of the seal can be-written, the whole may be. The law requires that they shall be impressed. A seal of office thus designed [without-name of the state] may be used for any state, whereas it is. contemplated by our statutes that the commissioner shall have a seal designed for this state alone.’

It is difficult to avoid the force of this reasoning. In truth,, as it appears to us, it cannot be avoided without, in effect,, by judicial construction, doing away with a statutory requirement. That we are not disposed to do; hence must hold that, for want of a proper verification of the complaint, the order for service by publication of the summons in the original action was void, and, on that account, that the court failed to obtain jurisdiction to render the judgment in such action, hence no jurisdiction to render the judgment appealed from.

By the Oo'wrt.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings-according to law.