55 Wis. 616 | Wis. | 1882
This is an appeal from a final judgment entered in favor of the plaintiff against the defendant upon default. The defendant did not appear or answer in the court below, and the attorneys who appear for him on this appeal expressly state in their notice of retainer to the plaintiff and respondent that they appear solely for the purpose of appealing from the judgment. The only ground relied upon for the reversal of the judgment is that the record does not show that the court had jurisdiction of the person of the defendant and appellant. The proof of the service of the summons found in the record is as follows:
a State of Wisconsin, County of Grant — ss.:
“ I hereby certify and return that I did, on the 2nd day of February, 1818, serve the within summons and complaint on the within named defendant, .Bichard Briscoe, by delivering to and leaving with his wife, Maria Briscoe, a person of suitable age and discretion, to whom I informed the nature and contents thereof, and who was also at the residence of said defendant, Richard Briscoe, in said county.
“ Matt. BieohaRd, Sheriff,
“ By J. L. Rewby, Deputy Sheriff.”
It is clear that this proof of service of the summons was not sufficient to give the court jurisdiction of the person of the defendant, and, in the absence of an appearance in fact by the defendant, a judgment entered by the court against him is erroneous, and must be reversed. Matteson v. Smith, 37 Wis., 333; Knox v. Miller, 18 Wis., 397; Rape v. Heaton, 9 Wis., 328; Pollard v. Wegener, 13 Wis., 569-575; Northrup v. Shephard, 23 Wis., 513; Mecklem, v. Blake, 19 Wis., 397; Weatherbee v. Weatherbee, 20 Wis., 499; Sayles v. Davis, 20 Wis., 302; Hall v. Graham, 49 Wis., 553. It is unnecessary to cite other authorities to this point, as it is
Although we have no doubt as to • the power of this court to permit the withdrawal of the record, to allow the officer to amend his return in the court below in accordance with the facts showing a legal service, and thereby cure the error in the record, and although we have very little doubt as to our power to permit the officer to amend his return in this court so as to-cure such defect, we are of the opinion that we ought not to permit either in this case. When the appellant brought his appeal, the record showed a clear and palpable error, for which the judgment rendered against him would be reversed, unless the error be cured by the amendment now sought to be made. There is nothing in the case which shows that the appellant was cognizant of the fact that a legal service of the summons had in fact been made. It would therefore he clearly wrong to permit an amendment of the record which would cure the defect, and cause an affirmance of the judgment, and charge him with the costs of the appeal. If the amendment had been made in the court below before an appeal had been taken, it is fair to presume that none would have been taken; or if an amend
The motion to amend here comes after the appellant has been compelled to prepare for the argument of the case on its merits, and if granted and an amendment should be made which would compel an affirmance of the judgment, we would be compelled, we think, to grant the leave to amend,, upon the condition that if the appellant so elected he might,, after the amendment was made, dismiss his appeal with costs against the respondent. The motion granted with such a condition would be of no practical value to the respondent. If the judgment is reversed, as it must be if the-amendment be not made, the appellant recovers nothing but. his costs of the appeal. The reversal does not give him any standing in the case in the court below, and immediately upon the return of the record the respondent can have the-sheriff’s return amended and re-enter his judgment, unless in the meantime the appellant can excuse his default and be let in to defend, upon a proper application to the court, below. See Sayles v. Davis, 22 Wis., 226, where the practice above indicated was approved by this court. Had the-application for leave to amend been accompanied with proofs showing that the respondent would lose any substantial right by the reversal of the judgment, it is probable the-court would have permitted the amendment, even at the late-stage of the proceedings at which the application was made,, in order to save the rights of the plaintiff.
By the Gourt.— It is so ordered.