126 Wis. 55 | Wis. | 1905
Appellant contends that tbe order of tbe circuit court should be reversed, and tbe relief demanded in ber petition for tbe vacation of tbe judgment rendered in tbe action should be granted, because it appears upon tbe face of tbe record that tbe affidavit of service relied on by tbe plaintiff is not entitled tbe same as is tbe summons and complaint. The discrepancy pointed out is an omission of tbe words contained in the summons “sole” and “formerly Skotzke.” Tbe summons is entitled on defendants’ part: “Ida Hoffmann and ber sole surviving joint-tenancy grantee, Antonina Siolowslci, formerly Skotzke, defendants,” while tbe affidavit is entitled: “Ida Hoffman and her joint-tenancy grantee, Antonma Sto-lowslci, defendant.” Tbe omitted words do not refer to tbe name of tbe party defendant, but are merely words of description, which were not essential to the summons. Their omission from tbe title is, at most, a clerical error in the affidavit of service, of no significance. Tbe parties are properly designated and named without their insertion. They do not add to or omit anything material and necessary in tbe title of tbe case. Tbe title as written in the summons and tbe affidavit of service are substantially tbe same.
It is next insisted that tbe affidavit of service does not comply with tbe requirements of sec. 2642, Stats. 1898, in that it omits to state that tbe person who claims to have served tbe
Appellant further contends that tbe judgment is void, because the.court signed tbe findings and rendered judgment as upon default without taking proof, and before tbe filing of an affidavit of default. Tbe court found expressly that “there-was no appearance for or on behalf of either of tbe defendants in the action,” and in tbe judgment recites:
“That the summons has been duly served on the defendants-herein, and that more than twenty days have elapsed since-such service, and that no answer to tbe plaintiff’s complaint has been served on tbe plaintiff’s attorney, and that no apr pearance has been made herein by tbe defendants.”
This shows conclusively that tbe court passed upon tbe question of default, and this recital must control as far as the-record is concerned. Appellant’s argument as to tbe neces
“The second subdivision of the section authorizes the plaintiff to apply to the court for judgment in other actions wherein the defendant has made default, ‘upon the,like proof.’ . . . 'The words “upon the like proof,’ contained therein, evidently moan upon proof of the facts required to be shown in subd. 1 ■of the section, which confers authority upon the clerk to enter judgment in certain cases on default. We do not think subd. 2 requires that such proofs be filed. There is no necessity that they should be filed, because they are made- in court, and their sufficiency is determined by the court in the first instance.” See, also, Mitchell v. Rolison, 52 Wis. 155, 8 N. W. 886.
Appellant mainly relies for relief under the demands of her petition upon the contention that there is no proof showing that the summons and complaint were served upon her, and that they were not in fact so served. The findings of the ■court and the judgment rendered therein, both bearing date of March 31, 1902, both state that it appeared to' the court that the summons was duly served on the defendants; and an affidavit of service was filed April 8, 1902, before entry of judgment. This is urged to be an insufficient showing of record that there was a service of summons, for the reason that sec. 2891, Stats. 1898, requires the evidence of such service to be filed with the clerk before the rendition of judgment. This claim is not supported by the authorities cited. They refer either to the filing of such proof in applications to the Merk for judgment under the first subdivision of this section, or present instances wherein the record of the evidence of such service, on which the court acted and relied, was wholly insufficient, to establish the fact of service, and hence was in•sufficient to authorize the entry of a valid judgment against
Upon the hearing of this petition the court found that appellant had in fact been served. In view of this finding the petition was properly dismissed and the judgment held to be valid.
By the Court. — The order appealed from is affirmed.