Wilkinson v. Bayley

Wisconsin Supreme Court

Wilkinson v. Bayley

36 N.W. 836, 71 Wis. 131, 1888 Wisc. LEXIS 116

CourtWisconsin Supreme Court

DecidedFebruary 28, 1888

StatusPublished

Cited by4 cases

This text of 36 N.W. 836 (Wilkinson v. Bayley) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilkinson v. Bayley, 36 N.W. 836, 71 Wis. 131, 1888 Wisc. LEXIS 116 (Wis. 1888).

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Opinion

OetoN, J.

This is an appeal from a judgment of foreclosure by one of the defendants appearing specially for such purpose. The summonses, with the proof of the pretended service thereof by the affidavit of two private persons on the same, which are a part of the record, show that no service was legally made upon any of the defendants, and that the court therefore did not acquire any jurisdiction to render said judgment. The affidavits do not state that a copy of the summons was left with any of the defendants, as required by sec. 2642, It. S. The judgment is •clearly void for such reason. There was no appearance in .the circuit court, and judgment was taken by default. The case of Hall v. Graham, 49 Wis. 553, is closely in point. In that case, as in this, the defective service appears by the affidavit of the person making the same, indorsed upon the summons, and there was no appearance, and the defect is •the same. The judgment was reversed for that reason ¡alone. In that case it was held that due and proper service must appear upon the record before the court was authorized to render judgment by default, which sufficiently answers the argument of the respondent’s counsel that it must be presumed that due service was made by the sheriff or other officer. Matteson v. Smith, 37 Wis. 333, is equally in point. See, also Pollard v. Wegener, 13 Wis. 569; Rape v. Heaton, 9 Wis. 328; Sayles v. Davis, 20 Wis. 302; Dundon v. Starin, 19 Wis. 261, and other cases in this court.

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

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OetoN, J.

This is an appeal from a judgment of foreclosure by one of the defendants appearing specially for such purpose. The summonses, with the proof of the pretended service thereof by the affidavit of two private persons on the same, which are a part of the record, show that no service was legally made upon any of the defendants, and that the court therefore did not acquire any jurisdiction to render said judgment. The affidavits do not state that a copy of the summons was left with any of the defendants, as required by sec. 2642, It. S. The judgment is •clearly void for such reason. There was no appearance in .the circuit court, and judgment was taken by default. The case of Hall v. Graham, 49 Wis. 553, is closely in point. In that case, as in this, the defective service appears by the affidavit of the person making the same, indorsed upon the summons, and there was no appearance, and the defect is •the same. The judgment was reversed for that reason ¡alone. In that case it was held that due and proper service must appear upon the record before the court was authorized to render judgment by default, which sufficiently answers the argument of the respondent’s counsel that it must be presumed that due service was made by the sheriff or other officer. Matteson v. Smith, 37 Wis. 333, is equally in point. See, also Pollard v. Wegener, 13 Wis. 569; Rape v. Heaton, 9 Wis. 328; Sayles v. Davis, 20 Wis. 302; Dundon v. Starin, 19 Wis. 261, and other cases in this court.

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

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Bluebook (online)

36 N.W. 836, 71 Wis. 131, 1888 Wisc. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkinson-v-bayley-wis-1888.

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