Prentice v. Stefan

72 Wis. 151 | Wis. | 1888

Taylor, J.

We cannot see how the appellant is aggrieved by the order made by the circuit court. If the summons and complaint were not signed by either the plaintiff or by an attorney authorized to practice in our courts, and for that cause the defendant was entitled to have the service thereof set aside as irregular and void, the court has granted that relief. If it be objected^that the court had no power to direct the service of the amended summons and complaint upon the attorney of the defendant instead of upon the defendant in person, the defendant cannot be prejudiced by that order until the plaintiff attempts to bring him into court by such service. The plaintiff, without any order of the court, would have the right to have the same summons and complaint signed by a practicing' attorney of the court, and then serve the same upon the defendant as an original summons and complaint. So we fail to see how the defendant can be injured by an order of the court permitting the plaintiff to do what he might do without such permission, so far as the amendment of the papers themselves is concerned. A summons and complaint in the hands of the plaintiff or bis attorney or agent, or in any other person’s hands, except an officer who is by law authorized to serve the same, cannot in any way affect the rights of the defendant. No action is commenced for anj7 purpose until the summons is served in one of the ways provided by the statute, not even for the purpose of stopping the running of the statute of limitations, unless the same be in good faith placed in the hands of some officer authorized to serve the same. See secs. 2629, 4240, E. S.. We are of the opinion that the defendant cannot be injured by the order made allowing the summons and complaint to be amended as indicated in the order, and for that reason his appeal should be dismissed. (

We think it proper to add that in our opinion the original service should not have been set aside. The defendant should have been held to be estopped from setting up the irregularity in subscribing the summons and complaint, if there was such irregularity. Having- admitted due personal service of the summons and complaint, with a full knowledge of all the facts, he cannot be allowed to say there was no service because a licensed attorney did not sign them, lie knew when the service was made and admitted that Mr. Brown was assuming to act for the plaintiff in commencing the action, and by his admission of service ho admits the authority of Mr. Brown to act for the plaintiff. He is no way injured by the fact that Mr. Brown was not a practicing attorney of the court, and the papers served gave him as full notice of the nature of the action which was brought against him as though they had been signed by the plaintiff in person or by a duly licensed practicing attorney. Bonesteel v. Orvis, 23 Wis. 506, 507. As to what effect that part of the order setting aside the service ol' the summons and complaint may have upon the rights of the parties to this action, we express no opinion.

By the Court.— The appeal is dismissed, with costs.