Porath v. Reigh & Salentine Co.

112 Wis. 433 | Wis. | 1901

Marshall, J.

The notice of appeal identified the cause and the judgment referred to with reasonable certainty, the record of which has been certified to this court. That satisfies the statute. “ Ered ” is so commonly used for Frederick and Friedrich that no good reason can be assigned for supposing that respondent was not fully informed by the notice who was intended as plaintiff; hence the title to the action was substantially given. Only one judgment therein existed. It was against the appellant, notwithstanding it was also against others; therefore the expression “ appeal from the judgment against the appellant” sufficiently pointed to the judgment in the record before us.

The motion to dismiss the appeal because the notice failed to state, as the fact was, that the appeal was only' from that part of the judgment which affected appellant, is ruled against respondent by Irvin v. Smith, 68 Wis. 220. True, sec. 3049, Stats. 1898, requires such a notice to state whether the appeal is from the whole judgment or from some part thereof, and if the latter, to specify the particular part; but it was held in the case cited that a notice of appeal in general terms sufficiently states that the whole judgment is questioned and satisfies the statute. If it turns out in any such case that the judgment only affects the appellant in part, and to that exent it is reversed and otherwise affirmed, his mistake in. challenging the whole thereof is punishable-in the discretion of the court in disposing of the question of costs. Sec. 2949.

The only question on the merits is this: In a paper attached to a summons, does a statement that the signer thereof served the summons on the defendant, naming him, and that he knows the person so served to be the identical-person named as defendant in such paper, substantially comply with the requirement of sec. 2642, Stats. 1898, that an affidavit of the service of a summons shall show that the person making the service “knew the person served to be the defendant mentioned in the summons ” ? Nothing less than a substantially full compliance with the statute is-sufficient to establish the jurisdictional fact of service so as-to enable the court to render a valid judgment by default. Sayles v. Davis, 20 Wis. 302; Grantier v. Rosecrance, 27 Wis. 488; Kernan v. N. P. R. Co. 103 Wis. 356. The language of the statute need not be literally followed. Any language-conveying, substantially, the statutory idea will do. German M. F. F. Ins. Co. v. Decker, 74 Wis. 556. In the absence of any adjudication on the subject there would be room for saying that words to the effect that the person who made-a service knows that he served on the right person, is not equivalent to saying that he had such knowledge at the instant of making the service, and that such concurrence of knowledge with the service is what the statute demands. However, in German M. F. F. Ins. Co. v. Decker, supra, this, court seems to have adopted a different rule, holding that it satisfies the statute if, at the time of making the proof of service, the person who served the paper knows the person served npon to be the defendant mentioned in the summons. The particular language there called in question is as follows: “The defendants are personally known to the affiant and are the identical persons named in the summons as defendants therein.” Ve will adhere to that ruling, holding that knowledge at the time of making proof of service is sufficient to satisfy the statute. The language “served on the defendant,” naming him, as it seems, beyond reasonable controversy, points to the defendant mentioned in the summons. It necessarily follows that the language referring to the defendant named in the paper as known to the maker thereof to be the one served upon, by relation points beyond all reasonable doubt to the defendant named in the summons, the effect of the whole being to show personal knowledge by the person making the service, that the person served upon was the identical person mentioned as defendant in the paper served. We cannot see any escape from that conclusion. It follows that we must hold that the proof of service in question was sufficient. That conclusion renders unnecessary any consideration of the various motions made by the respondent in respect to amending the proof of service.

By the Gourt.— The various motions are denied, and, under the circumstances, without costs. The judgment appealed from is affirmed.