McConkey v. McCraney

37 N.W. 822, 71 Wis. 576, 1888 Wisc. LEXIS 171

Opinion

Per OuriaM;

It is clear that the service of the summons and complaint, as shown by the record, was a void service. The sheriff failed entirely to ‘serve the papers as required by subd. 4, sec. 2636, R. S., when the defendant cannot be found. It is equally clear that the clerk had no authority to enter judgment out of term, had the service been made as required by said section. See sec. 2891, R. S. That the service was void and gave the court no jurisdiction of the person of the defendant, see Weis v. Schoerner, 53 Wis. 72; Hall v. Graham, 49 Wis. 553; Matteson v. Smith, 37 Wis. ; Sayles v. Davis, 20 Wis. 302; Pollard v. Wegener, 13 Wis. 569. That the clerk has no power to enter judgment out of term when the process is not personally served on the defendant, see Northrup v. Shephard, 26 Wis. 220; Moyer v. Cook, 12 Wis. 335; Morrison v. Austin, 14 Wis. 601; Northrup v. Shephard, 23 Wis. 513.

The judgment of the circuit court is reversed, and the cause is remanded.