179 Wis. 98 | Wis. | 1922
Two principal questions are raised here: First, did the appearance of the defendant in the circuit
By some courts it is held that an appearance for the purpose of making a motion to remove a cause from a state court to a court of the United States pursuant to the statutes of the' United States does not constitute a general appearance in the state court. Other courts hold to the contrary. On the part of the petitioner here, it is claimed that, the proceedings being based upon a statute of the United States (sec. 1011, 1 U. S. Comp. Stats. 1916, Annotated), the construction placed upon that statute by the federal court is binding upon the state court, it being held that such an appearance does not constitute a general appearance. Cain v. Commercial Pub. Co. 232 U. S. 124, 34 Sup. Ct. 284; Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559; Mechancial Appliance Co. v. Castleman, 215 U. S. 437, 30 Sup. Ct. 125; Wabash Western R. Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126.
It does not follow that because this court is bound by the construction placed upon the statute referred to by the supreme court of the United States it is concluded as to what constitutes a general or special appearance in the courts of this state.
In Farmer v. National L. Assur. Co. 138 N. Y. 265, 33 N. E. 1075, it was held by the court of appeals of the state of New York that the averment contained in the petition for removal to the federal court that there is an action pending in the state court and that he is a party to it is a .submission to the jurisdiction of the state court, and upon the cause being remanded by the federal court he cannot object that there was not a valid service upon him of the summons
While there is much force in the position taken by the court of appeals of New York, we agree with the federal court that an appearance for the purpose óf making a motion that the cause be removed to the federal court is of itself a challenge to the jurisdiction of the court. The party making the motion, being required to proceed in a particular way, ought not to be concluded if as a matter of fact the state court has no jurisdiction. As was said in Goldey v. Morning News, supra, while a suit must be actually pending in the state it need not be rightfully pending, and the petition for removal does not admit that it is rightfully pending.
The rule of the federal courts is supported by the better reasoning and is in accord with the weight of authority in the courts of the states. Coombs v. Parish, 6 Colo. 296; Paul v. B. & O. R. Co. 33 Ind. App. 157, 69 N. E. 1024; Schwab v. Mobley, 47 Mich. 512, 11 N. W. 294; State v. American Surety Co. 26 Idaho, 652, 145 Pac. 1097; Bryan v. N. & W. R. Co. 119 Tenn. 349, 104 S. W. 523; First Nat. Bank v. Johnson, 130 La. 288, 57 South. 930. Contra: Farmer v. Nat. L. Assur. Co. 138 N. Y. 265, 33 N. E. 1075; State ex rel. Portland C. Co. v. Sale, 232 Mo. 166, 132 S. W. 1119.
If it were otherwise and there was no preponderance of authority or weight of reason on either side, we should adopt the federal rule for the sake of uniformity. Topolewski v. Plankinton P. Co. 143 Wis. 52, 126 N. W. 554.
Second. By sec. 2640, Wis. Stats., it is provided that an application for service by publication shall be based “upon the complaint duly verified and filed.”
Sec. 2666 prescribes the requirements for verification. That part of the section material here is as follows:
“The affidavit may be made by an agent or attorney if no such party be within the county where the attorney resides, or if the action or defense be founded upon a*102 written instrument in such attorney’s possession, or if all the material allegations of the pleading be within his personal knowledge or belief. When the pleading is verified by any other person or. party, he shall set forth in the affidavit his knowledge or the grounds of his belief on the subject,, and the reason why it is not made by the party, and if made on knowledge, shall state that the pleading is true to his knowledge, and if on his belief, that he believes it to be true.”
The language of the verification in this case is as follows:
“Morris Geisenfeld, being duly sworn, on oath deposes and says that he is one of the attorneys for the plaintiff in the above entitled action; that he knows the contents of the foregoing complaint and that the same is true to his own knowledge; that the reason that this verification is not made by the plaintiff is that the plaintiff is not now in Milwaukee county where the affiant resides; that all of the allegations of the said complaint are within the personal knowledge of this affiant.”
Affiant nowhere states or attempts to state his knowledge on the subject. The precise question raised here was considered in Crane v. Wiley, 14 Wis. 658. It was there said:
“The statute says that when the pleading is verified by another person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief. Now what knowledge had the attorney of the matters stated in the complaint? Was he present when the note was made and delivered? In other words, what is his knowledge upon the subject? ... Was he present when the transactions occurred? Did they take place under his own observation? If so, he may be said to have ‘knowledge’ of them, in the sense of the word as used in the statute. But if he was not, and if all his information upon the subject is derived from the statements of others, from the possession of the instrument, etc., then, while he may have excellent grounds for a belief that the matters stated in the complaint are true, he cannot be said to have any actual knowledge of them.”
Crane v. Wiley, 14 Wis. 658, was affirmed in Hecht v. Chase, 158 Wis. 342, 149 N. W. 29, and it must be held here as there that service by publication was ineffective and did not give the court jurisdiction for the reason that the complaint was not properly verified.
By the Court. — The court having no jurisdiction in the case or in the garnishment proceeding, it is ordered that the writs of prohibition issue as prayed for.