40 Wis. 571 | Wis. | 1876
The motion to vacate the judgment in this case was made at a subsequent term of the court below. And if the court had acquired jurisdiction of the person of the respondent, before judgment, the motion to vacate it came too late, within the rule of Ætna Ins. Co. v. McCormick, 20 Wis., 265. If the judgment be prematurely entered up, it would be irregular only, not void; and the irregularity, an error of the court below, 'which it could not correct at a subsequent term. This question was very fully considered in Salter v. Hilgen, decided at this term [ante, p. 363]. That case controls this, unless the court below had not acquired jurisdiction over the respondent when the judgment was rendered.
Sec. 12, ch. 124, Tay. Stats., provides for service of a summons and complaint upon a nonresident, by publication and by mail; but that when publication is ordered, “personal service of a copy of the summons and complaint, out of the state, shall be equivalent to publication and deposit in the post office.” It is obvious that where such personal service is made, it supersedes the necessity both of publication and of mailing. This is the construction in Hew York of a similar provision. Brooklyn Trust Co. v. Bulmer, 49 N. Y., 84. In this case, there -was personal service out of the state, after the order of publication; and the questions whether or when
Whatever time the respondent might have had, after the personal service upon him, to answer the complaint (a question not necessarily involved in this appeal, and on which we indicate no opinion), it is very certain that, in any construction of the statute, the service was complete, at the latest, in six weeks after it was made. Brooklyn Trust Co. v. Bulmer, supra. That was some time before the judgment was rendered; and the court below had jurisdiction over the respondent, whether the judgment was prematurely taken or not.
By the Court. — The order of the court below is reversed.
A motion for a rehearing was denied.
