Phillips v. Portage Transit Co.

118 N.W. 539, 137 Wis. 189

• Court: Wisconsin Supreme Court
• Decided: December 1, 1908
• Status: Published

Opinion

KeewiN, J.

1. Tbe first claim made by counsel for appellant is that tbe order refusing to set aside tbe service of tbe summons was erroneous. This claim is based upon the contention that tbe captain was not a person, within tbe meaning of tbe statute, upon whom service could be made. Subd. , .13, sec. 2637, Stats. (1898), provides, in effect, that service upon a foreign corporation of a class to wbicb the defendant-belongs may be made upon any agent having charge of or conducting any business for such corporation within the state. It appears very clearly from the record that the captain of the boat was such an agent within the meaning of the' statute. He was, at the time of the service and prior thereto? conducting business of the defendant corporation within the-state, therefore was an agent upon whom service could be-made. Subd. 13, sec. 2637, Stats. (1898) ; 20 Am. & Eng. Ency. of Law (2d ed.) 199. The service upon the captain being good, it is unnecessary to consider the effect of a. general appearance.

2. It is further insisted that the court below erred in its order refusing to set aside the judgment entered by default for several reasons, namely: (1) that the service was not personal; (2) that the complaint did not state a cause of action; (3) that there was not sufficient proof to warrant the-entry of judgment. The service having been made upon an agent designated by the statute as a proper person upon whom service could be made, the service was personal within the meaning of the statute authorizing entry of judgment by default. The complaint stated a good cause of action. It-stated, in effect, that the plaintiff was a minor and that the-action was brought by the guardian ad litem duly appointed;. that the defendant was a foreign corporation, organized under the laws of the state of Ohio, and was the owner of and engaged in operating a steam vessel known as the Portage;, that on or about the 11th day of August, 1906, while said steamer was at the docks of the Co-Operative Coal Company in the city of De Pere, Brown county, Wisconsin, and the defendant engaged in loading and transferring blocks of’ ice from the dock to the upper part of the steamer, the plaintiff, at the same time being engaged as employee of said CoOperative Coal Company, was injured by the careless and negligent handling of ice by the defendant in such manner-. as to cause a large block thereof to fall upon him, seriously injuring him, in consequence of which he suffered great pain and anguish of body and mind, and was permanently lamed and crippled so as to unfit him for performing manual labor, in all to his damage $5,000. Objection is made to the complaint on the ground that it fails to set forth the particular facts of negligence relied upon. Whether the complaint would have been subject to a motion to make more definite and certain we need not determine, because we are convinced that, in the absence of any objection before verdict, the allegations of negligence were sufficient. It is insisted that the complaint contained no demand for relief and was not properly verified. Instead of closing with the usual demand for damages it contains the phrase “in all to his damage five thousand dollars,” and it is insisted that this is not a sufficient demand for judgment under sec. 2646, Stats. (1898), which provides that the complaint shall contain a demand of the judgment to which the plaintiff supposes himself entitled, and, if the recovery of money be demanded, the amount thereof shall be stated. Sec. 2886, Stats. (1898), also provides that the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; and sec. 2829 provides that the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and that no judgment shall be reversed or affected by reason of such error or defect. In the instant case the complaint was not served with the summons and was never served upon the defendant, but was filed at or shortly before the trial. So it is very clear .that the defendant could not by any possibility have been prejudiced by the defect complained of respecting the demand for judgment. It is true the demand was not in the usual and customary form, and whether it would have been sufficient in a case where the complaint had been served with tbe summons and judgment taken by default we do not find necessary to decide, since we are very clear that tbe defendant was in no way prejudiced.

Tbe complaint was verified by the guardian ad litem positively and of bis own knowledge. It is argued by appellant that this was not a good verification, but that tbe verification should have been made by the infant plaintiff, and it is urged that tbe guardian occupied tbe position of an agent.of tbe plaintiff and therefore it was necessary that be should have stated bis knowledge. We do not think tbe rule contended for by appellant applies in tbe case of verification by a guardian ad litem, but that tbe guardian ad litem verifies as a party. Therefore tbe rules respecting verification by a party apply. 22 Cyc. 685; Clay v. Baker, 41 Hun, 58; Turner v. Cook, 36 Ind. 129.

It appears from tbe record before us that tbe defendant did not appear prior to the entry of judgment-, and that tbe case was placed upon tbe calendar for trial and due proof made of tbe default and tbe damages assessed by a jury. It is claimed by counsel for appellant that tbe plaintiff in making bis proof introduced some testimony relating to the question of negligence in addition to evidence on tbe question of damages, and that because be offered some evidence respecting bis right to recover be was obliged to make a complete case, and having failed to do so be was not entitled to judgment. We cannot agree with counsel in this contention. Tbe complaint being duly verified, plaintiff was obliged only, under sec. 2891, Stats. (1898), to make proof of bis damages. Trumbull v. Peck, 17 Wis. 265; Gorman v. Ball, 18 Wis. 24; Sibley v. Weinberg, 116 Wis. 1, 92 N. W. 427. Tbe evidence offered did not negative tbe plaintiff’s right to recover, and it was ample and sufficient to support tbe verdict of tbe jury on tbe amount of damages found. So, even if it be conceded that tbe plaintiff proved more than be was obliged to, it in no way affected bis right to recover. We therefore find no error in the refusal of the court to set aside the service of the summons or the default judgment.

3. It is further strenuously urged that the court below should have opened' the default and permitted the appellant to defend. The learned trial judge rendered an opinion on denial of the motion, from which it appears that it was denied because of failure to show-mistake, inadvertence, surprise, or excusable neglect, and because there was not a sufficient showing of merits. It appears from the record that at or about the time of the service of the summons and attachment upon the captain, September 28, 1906, the captain consulted with an attorney respecting such service and was advised that the sheriff had no right to make the attachment, and that it was void and the. seizure of the boat under the attachment illegal; and he was further advised to have the defendant employ an attorney at Green Bay or elsewhere to move to set aside said service of such summons and attachment. It also appears that on October 1, 1906, the defendant was informed by the captain of the attachment, and defendant instructed the captain to disregard it and to put the sheriff off the boat, and if he would not go when ordered, or could not be put off, to carry him away with the boat. The boat was removed in the absence of the sheriff shortly after the attachment had been made, and nothing further done by defendant respecting tire service until long after judgment had been entered. It does not appear that defendant was ever advised that the service of the summons was not good, but defendant paid no attention to it and made no move until long after judgment was rendered. The purpose of the defendant obviously seems to have been to get the boat out of the possession of the sheriff and beyond the jurisdiction of the court and pay no attention to the service. Moreover, the showing of a defense on the motion to open the default was not strong. The court below held that while there were sufficient positive allegations in the answer, if proved, to constitute a defense, tbe answer proposed being by a corporation and verification by tbe president, wbo it appeared from tbe record bad no personal knowledge thereof, tbe defendant should have produced on tbe motion proof of merits. There was also used upon the motion an affidavit of one Sullivan, vessel agent, which practically added nothing to the-answer, because all the material averments of it were upon information and belief. From tbe answer of tbe defendant as well as tbe affidavit of Sullivan it appears that tbe showing of merits was, as held by tbe court below, practically upon information and belief and not positive. A showing-made upon information and belief, on application to open a default, has been held insufficient. Superior C. L. Co. v. Dunphy, 93 Wis. 188, 61 N. W. 428, and cases there cited; Deering E. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426. Nor are conclusions sufficient, even though stated positively upon tbe knowledge of the pleader. Facts should be stated from which tbe court can see whether a valid defense exists. Roemer v. Schmidt, 134 Wis. 1, 114 N. W. 127; Kremer v. Sponholz, 129 Wis. 549, 109 N. W. 527. The allegations of the answer were very meager upon the facts going to the' defense upon the merits, and necessarily so because of lack of knowledge on-the part of the president. No affidavit of tbe parties who knew the facts was produced and no reason given why it was not. Tbe affidavit of tbe vessel agent is upon information received from tbe master of tbe vessel, officers, and seamen, but no affidavit of tbe master or any seaman was produced. Tbe allegations of tbe answer are quite general, simply denying negligence on tbe part of the defendant and alleging that plaintiff was not at the time of injury engaged as employee of defendant, and that defendant had no control over the loading of the ice. No affidavit was produced on the hearing to support the allegations of tbe answer as to the merits of the defense. The motion to open tbe judgment was addressed to tbe sound discretion of the trial court. Kremer v. Sponholz, supra; Menasha W. W. Co. v. Michelstetter, 126 Wis. 427, 105 N. W. 927; Buchan v. Nelson, 114 Wis. 234, 90 N. W. 114; Rogers v. Fate, 113 Wis. 364, 89 N. W. 186. We cannot say that such discretion was abused. A default should be opened only if the ends of justice seem to require it. Superior C. L. Co. v. Dunphy, 93 Wis. 188, 67 N. W. 428. The court below in its opinion hied held that the ends of justice did not require that the judgment be set aside, or that such excuse had been shown as called for the exercise of the court’s discretion in defendant’s favor.

We find no abuse of discretion in so ruling. Therefore the orders and judgment appealed from must be affirmed.

By the Court. — The orders and judgment appealed from are affirmed.