Hall v. Graham

5 N.W. 943, 49 Wis. 553, 1880 Wisc. LEXIS 77

Opinion

OutoN, J.

The circuit court had no jurisdiction to render the judgment appealed from, because there was before the court no such proof of the service of the summons as the statute requires. Subd. 2, sec. 2642, R. S.; Matteson v. Smith et al., 37 Wis., 333. The affidavit of the person who is alleged to have served the summons, and which constitutes the only return of such service, fails to state that a copy of the summons was left with the defendant. The motion papers for an amended return were submitted after the decision of this ease; but it was too late to mate such an amendment of the record as would cure the error, after the appeal. The defect was- jurisdictional, and could not be cured. Proof of service of the summons is a condition precedent or prerequisite to the rendition of a judgment by default.

By the Court. — The judgment of the circuit court is reversed, with costs, and the cause remanded for further proceedings according to law.