Witt v. Meyer

35 N.W. 25, 69 Wis. 595, 1887 Wisc. LEXIS 239

• Court: Wisconsin Supreme Court
• Decided: November 1, 1887
• Status: Published

Opinion

Taylou, J.

We think the publication of the summons and the other proceedings in the court should have been set aside, on the ground that it conclusively appeared that the complaint had not been filed as required bj' the provisions of sec. 2640, R. S. The affidavit of Mr. Conklin and the certificate of the clerk clearly sIioav that the complaint had not been “filed” within the meaning of the statute. It has been said that the object of the statute in, requiring the complaint to be filed is that the defendant may, if he sees fit, examine it at the office, to determine whether he will appear and answer in the case. But, whether this or some other purpose was the reason which induced the legislature to require it to be filed, it is very clear from all the decisions upon the subject that, the manner of service being a purely statutory one, all the requirements of the statute must be followed, or the service is void, and the court acquires no jurisdiction to try the case. Anderson v. Coburn, 27 Wis. 558; Cummings v. Tabor, 61 Wis. 185, 191; Manning v. Heady, 64 Wis. 630.

If an attorney may procure an indorsement of the filing of his complaint by the clerk, and then put the same in his pocket until he enters judgment, the statute might as well be repealed so far as -it is intended to furnish any information to the defendant in the action. We do not hold that a temporary removal of the complaint from the files of the court would vitiate the service, but we hold that it must be in fact filed in the office of the clerk, and remain there, subject, perhaps, to a temporary removal for a lawful purpose. The evidence in this case clearly shows that it never was in the hands of the clerk as a paper filed in his office, nor does it appear that any entry of the action was made in the docket of the clerk. We cannot approve of the practice pursued in this case.

There is another objection to this proceeding, to which we call the attention of the attorneys of the plaintiff for their consideration: The affidavit sets up a cause of action in tort, arising in this state, and alleges the non residence of the defendant, and perhaps comes, within the letter of the statute. Subd. 1, sec. 2639, R. S. We have however very grave doubts whether a judgment rendered against the defendant in such an action would bind his person or property. If it would not, it would be improper to permit the party to take judgment therein. If there had. been an allegation in the affidavit that the defendant had property in this state, describing the same, it may be that the.action, might proceed to judgment without first attaching such property, and that such property might be liable to seizure and sale upon an execution issued on such .judgment. That this might be lawfully done was strongly intimated in the case of Jarvis v. Barrett, 14 Wis. 591, 595; see, also, Winner v. Fitzgerald, 19 Wis. 393; Jones v. Spencer, 15 Wis. 583; Rape v. Heaton, 9 Wis. 328. We think the same cases as strongly intimate that when the affidavit does not disclose that the defendant has property within the state, the court cannot obtain jurisdiction of the defendant so as to make the judgment of any effect against him. Upon this question, see, also, the case of Smith v. Grady, 68 Wis. 215.

By the Court.— The order of the county court is reversed, and the cause is remanded with directions to that court to enter an order setting aside all the proceedings in the action except the issuing of the summons.