Kernan v. Northern Pacific Railroad

79 N.W. 403, 103 Wis. 356, 1899 Wisc. LEXIS 192

• Court: Wisconsin Supreme Court
• Decided: June 2, 1899
• Status: Published

Opinion

BaedeeN, J.

The order appealed from must be affirmed, because:

1. The affidavit of service is clearly insufficient. Sec. 2642,. S. & B. Ann. Stats., provides that, if the service of a summons is made'by any person other than the sheriff, proof of such service shall be made by affidavit of the person making such service, showing place, time, and manner of service, “ and that be knew the person served to be the defendant mentioned in the summons.” The affidavit referred to fails to meet these requirements. The statement therein that the affiant knew that the person with whom he left a copy of the summons and complaint sustained a certain relation to the defendant is not a statement of the fact that he knew the corporation upon whom service was attempted to be had was “ the defendant mentioned in the summons.” That this requirement is deemed material is demonstrated by reference to the following cases: Sayles v. Davis, 20 Wis. 302; Grantier v. Rosecrance, 27 Wis. 488; German, Mut. F. F. Ins. Co. v. Decker, 74 Wis. 556.

2. The principle is too elementary to need discussion that a court can only acquire jurisdiction of a party, when there is no appearance, by the service of process in the manner prescribed by law. Watertown v. Robinson, 59 Wis. 513. So, when a statute intervenes and displaces the common-law manner of service, we are brought to a question of words, and are bound to take the words of the statute as law. The cases are numerous which decide that, when a particular method of serving process is pointed out by statute, that method must be followed, and the rule is especially exacting in reference to corporations. Amy v. Watertown, 130 U. S. 301; Watertown v. Robinson, 69 Wis. 230. Subd. 6, 7, sec. 2637, S. & B. Ann. Stats., prescribe the manner in which service of process can be had on railroad corporations. Subd. 6 refers to railroad corporations whose general office is within this state. It is argued by plaintiff that, inasmuch as the defendant was incorporated under an act of Congress, it was to all intents and purposes a domestic corporation, and that service upon the corporation could be had in the manner pointed out by that subdivision. The difficulty with that contention is this: it permits service of the summons to be made úpon the general manager only where the defendant is a railroad corporation whose general office is within the state, and where the general manager shall reside and be within the county within which such action is brought. None of these conditions was found to exist. On the contrary, it appears that the defendant did not have its general office in this state, and that Mr. Kendrick did not reside in, nor was he within, Bacine county, in which county the action was brought, when the attempt to make service was made. The affidavit failing to show a compliance with the statutes referred to, the order of the circuit court was properly made.

By the Gourt.— The order of the circuit court is affirmed.