Electric Appliance Co. v. Warren

91 N.W. 970, 115 Wis. 477, 1902 Wisc. LEXIS 228

Opinion

BakdeeN, J.

It is conceded that the proof of service of the summons and complaint in this action is insufficient. In Moyer v. Cook, 12 Wis. 335, this court held that the words “personal service,” in a statute similar to subd. 1, sec. 2891, Stats. 1898, meant delivery of the papers served to' the defendant personally. In McConkey v. McCraney, 71 Wis. 576, 37 N. W. 822, the rule established by former decisions of this court, there cited, was affirmed, — that the clerk had no power, under sec. 2891, to enter judgment out of term, when the process had not been' personally served upon the defendant. The cases on this subject were reviewed in the late case of Zimmerman v. Gerdes, 106 Wis. 608, 82 N. W. 532, where it was held that a judgment taken by defendant under the statute mentioned, without jurisdiction over the person, would be reversed on appeal, notwithstanding the appeal was a general one from the whole judgment. This is decisive of this appeal. The clerk had no power to enter judgment out of term when the process was not personally served upon the defendant, and this disability is not waived by a general appeal, or by an attack upon tbe merits of tbe judgment in tbis court.

By the Court. — Tbe judgment is reversed, and tbe cause is remanded for further proceedings according to law.