Heinemann v. Pier

• Citation: 85 N.W. 646,110 Wis. 185
• Parties: HEINEMANN v. PIER.
• Decision Date: 09 April 1901
• Court: United States State Supreme Court of Wisconsin

110 Wis. 185

85 N.W. 646

HEINEMANN

v.PIER.

Supreme Court of Wisconsin.

April 9, 1901.

Appeal from circuit court, Iron county; John K. Parish, Judge.

Ejectment by Sigmund Heinemann against Kate Pier. From an order denying her motion to set aside a default judgment and dismiss the complaint, defendant appeals. Reversed.

This is an action of ejectment. The summons and complaint were attempted to be served by a private person upon the 7th of September, 1898, by delivering the same to the defendant's daughter, Mrs. John H. Roemer. The following affidavit of service was made, and constitutes the only proof of such service: “Charles Friend, being first duly sworn, on oath deposes and says: That he is an attorney at law, duly admitted to practice in the state of Wisconsin, residing in the city of Milwaukee, in said state; that on the 7th day of September, 1898, at about 9:30 o'clock in the forenoon, he served the annexed and foregoing summons and complaint upon the defendant, Kate Pier, to him well known to be the identical person named as defendant in the said action, at her home, No. 577 Van Buren street, in the city of Milwaukee, which is her usual place of abode, by delivering to and leaving with her daughter, Mrs. John H. Roemer, a member of the family of said defendant, who resides with her, being a person of suitable age and discretion, a true and correct copy thereof, and of the whole thereof, and at the same time and place the affiant informed said Mrs. John H. Roemer of the contents thereof; that the reason said affiant did not serve said defendant, Kate Pier, personally is that she could not be found. Charles Friend.” On the 20th of September, 1898, the defendant appeared specially for the purpose of moving to dismiss only, and made a motion to dismiss the action for want of service of the summons on the defendant, which motion was based upon affidavits of the defendant and of Caroline H. Roemer, showing that no personal service was ever made upon the defendant, and that Caroline H. Roemer, who is a daughter of the defendant, with whom the summons and complaint were left, was a married woman at the time, and the wife of John H. Roemer, and was a member of the family of John H. Roemer, and not a member of the defendant's family. The motion was denied, and exception taken. The defendant made no further appearance in the action, and judgment by default was entered for the plaintiff June 22, 1899. June 13, 1900, the defendant again appeared specially, and moved to set aside judgment and dismiss the complaint, because no service of the summons had ever been made; said motion being based upon additional affidavits showing more fully that Caroline H. Roemer was not a member of the family of the defendant at the time of the alleged service. This motion was denied, and the defendant appeals from the judgment and from...