Moulton v. Williams

77 N.W. 918, 101 Wis. 236, 1898 Wisc. LEXIS 342

• Court: Wisconsin Supreme Court
• Decided: November 22, 1898
• Status: Published

Opinion

Mabshall, J.

An affidavit of the plaintiff, or of some one in his behalf, first duly filed with the justice, establishing the necessity for the appointment of a person to serve the summons, was a condition precedent to such appointment under sec. 3608, Stats. 1898. That condition not having been complied with, the first service was void. If the appearance can be said to have been in response to the void service, it did not waive the benefit of the statute of limitations. Its only effect was to give the justice jurisdiction of the person. The only way the statute could have been impliedly waived was by failure of the defendant to properly plead and insist upon it. It is suggested that if the first service was void, the delivery of the summons in good faith to the person who made it for the purpose of commencing the action was an attempt to commence it within the meaning of sec. 4210, Stats. 1898. It is a sufficient answer to that to say that the section applies only where thei’e is a subsequent completed, service by publication. It has no-apt^lication to the facts of this case. Mariner v. Waterloo, 75 Wis. 438. No other question is raised deserving notice here.

By the Court.— Judgment affirmed.