Bestor v. InterCounty Fair

• Decision Date: 31 March 1908
• Citation: 135 Wis. 339,115 N.W. 809
• Parties: BESTOR v. INTERCOUNTY FAIR.
• Court: Wisconsin Supreme Court

135 Wis. 339

115 N.W. 809

BESTOR

v.INTERCOUNTY FAIR.

Supreme Court of Wisconsin.

March 31, 1908.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Certiorari by D. L. Bestor against the Intercounty Fair. From a judgment of the circuit court affirming a judgment in the justice's court for plaintiff, defendant appeals. Affirmed.Thomas W. King, for appellant.

Bentley & Kelley, for respondent.

KERWIN, J.

This is a certiorari proceeding brought to reverse the judgment of a justice of the peace of Sauk county. The justice's docket shows that summons was issued on the 15th day of January, returnable January 29th at 2 p. m., and served on John Morgan, secretary of defendant, by leaving a copy at his usual abode with his wife and stating to her its contents; that on January 29th plaintiff appeared, the case was called and held open one hour, defendant did not appear, and the case was adjourned for cause to February 5th at 2 p. m. at the office of the justice; that on February 5th defendant appeared by J. E. Morgan and made a motion that the return of the officer on the summons be amended to conform to the facts, and that the action be dismissed because the justice had not acquired jurisdiction of the defendant. An affidavit was attached to the motion in which Morgan stated that the copy of the summons in the action was served upon him January 22d and made returnable at 2 o'clock in the forenoon on the 29th day of January, 1906. The defendant also set up in the motion the fact of alleged defective service in not leaving a copy with the officer of defendant, and further that it would appear from the original summons and affidavit of Morgan that the copy of summons served on Morgan was not in fact a copy; that by the summons the action was returnable at 2 p. m., while the copy was returnable at 2 a. m., and submitted the matter to the court to be determined and the return of the officer amended to conform to the facts. The justice denied the motion to dismiss, and afterwards entered judgment for plaintiff and against defendant. The circuit court affirmed the judgment of the justice. We are of opinion that the appearance of the defendant, though denominated in the motion a special appearance, amounted to a general appearance, and gave the court jurisdiction of the person of the defendant, and therefore the justice had power to render judgment.

It is well settled in this court that if a litigant desires to avail himself of want of...