137 Wis. 189 | Wis. | 1908
1. Tbe first claim made by counsel for appellant is that tbe order refusing to set aside tbe service of tbe summons was erroneous. This claim is based upon the contention that tbe captain was not a person, within tbe meaning of tbe statute, upon whom service could be made. Subd. , .13, sec. 2637, Stats. (1898), provides, in effect, that service
2. It is further insisted that the court below erred in its order refusing to set aside the judgment entered by default for several reasons, namely: (1) that the service was not personal; (2) that the complaint did not state a cause of action; (3) that there was not sufficient proof to warrant the-entry of judgment. The service having been made upon an agent designated by the statute as a proper person upon whom service could be made, the service was personal within the meaning of the statute authorizing entry of judgment by default. The complaint stated a good cause of action. It-stated, in effect, that the plaintiff was a minor and that the-action was brought by the guardian ad litem duly appointed;. that the defendant was a foreign corporation, organized under the laws of the state of Ohio, and was the owner of and engaged in operating a steam vessel known as the Portage;, that on or about the 11th day of August, 1906, while said steamer was at the docks of the Co-Operative Coal Company in the city of De Pere, Brown county, Wisconsin, and the defendant engaged in loading and transferring blocks of’ ice from the dock to the upper part of the steamer, the plaintiff, at the same time being engaged as employee of said CoOperative Coal Company, was injured by the careless and negligent handling of ice by the defendant in such manner-.
Tbe complaint was verified by the guardian ad litem positively and of bis own knowledge. It is argued by appellant that this was not a good verification, but that tbe verification should have been made by the infant plaintiff, and it is urged that tbe guardian occupied tbe position of an agent.of tbe plaintiff and therefore it was necessary that be should have stated bis knowledge. We do not think tbe rule contended for by appellant applies in tbe case of verification by a guardian ad litem, but that tbe guardian ad litem verifies as a party. Therefore tbe rules respecting verification by a party apply. 22 Cyc. 685; Clay v. Baker, 41 Hun, 58; Turner v. Cook, 36 Ind. 129.
It appears from tbe record before us that tbe defendant did not appear prior to the entry of judgment-, and that tbe case was placed upon tbe calendar for trial and due proof made of tbe default and tbe damages assessed by a jury. It is claimed by counsel for appellant that tbe plaintiff in making bis proof introduced some testimony relating to the question of negligence in addition to evidence on tbe question of damages, and that because be offered some evidence respecting bis right to recover be was obliged to make a complete case, and having failed to do so be was not entitled to judgment. We cannot agree with counsel in this contention. Tbe complaint being duly verified, plaintiff was obliged only, under sec. 2891, Stats. (1898), to make proof of bis damages. Trumbull v. Peck, 17 Wis. 265; Gorman v. Ball, 18 Wis. 24; Sibley v. Weinberg, 116 Wis. 1, 92 N. W. 427. Tbe evidence offered did not negative tbe plaintiff’s right to recover, and it was ample and sufficient to support tbe verdict of tbe jury on tbe amount of damages found. So, even if it be conceded that tbe plaintiff proved more than be was obliged to, it in no way affected bis right to recover. We
3. It is further strenuously urged that the court below should have opened' the default and permitted the appellant to defend. The learned trial judge rendered an opinion on denial of the motion, from which it appears that it was denied because of failure to show-mistake, inadvertence, surprise, or excusable neglect, and because there was not a sufficient showing of merits. It appears from the record that at or about the time of the service of the summons and attachment upon the captain, September 28, 1906, the captain consulted with an attorney respecting such service and was advised that the sheriff had no right to make the attachment, and that it was void and the. seizure of the boat under the attachment illegal; and he was further advised to have the defendant employ an attorney at Green Bay or elsewhere to move to set aside said service of such summons and attachment. It also appears that on October 1, 1906, the defendant was informed by the captain of the attachment, and defendant instructed the captain to disregard it and to put the sheriff off the boat, and if he would not go when ordered, or could not be put off, to carry him away with the boat. The boat was removed in the absence of the sheriff shortly after the attachment had been made, and nothing further done by defendant respecting tire service until long after judgment had been entered. It does not appear that defendant was ever advised that the service of the summons was not good, but defendant paid no attention to it and made no move until long after judgment was rendered. The purpose of the defendant obviously seems to have been to get the boat out of the possession of the sheriff and beyond the jurisdiction of the court and pay no attention to the service. Moreover, the showing of a defense on the motion to open the default was not strong. The court below held that while there were sufficient positive allegations in the answer, if proved, to
We find no abuse of discretion in so ruling. Therefore the orders and judgment appealed from must be affirmed.
By the Court. — The orders and judgment appealed from are affirmed.