Caskey v. Peterson

• Court: Wisconsin Supreme Court
• Writing for the Court: MARTIN
• Citation: Caskey v. Peterson, 220 Wis. 690, 263 N.W. 658 (Wis. 1935)
• Decision Date: 03 December 1935
• Parties: CASKEY v. PETERSON ET AL.

220 Wis. 690

263 N.W. 658

CASKEY

v.PETERSON ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1935.

Appeal from orders and judgments of the Municipal Court for Racine County; E. R. Burgess, Municipal Judge.

Actions by Harry Caskey, administrator of the estate of Marvin Caskey, deceased, Jens Jensen, administrator of the estate of Earl Jensen, deceased, and Elsie Vivian Ingle, guardian ad litem of Charles Ingle, an infant, against Harold Peterson and others. Judgment for named defendant in each action, and each plaintiff appeals.--[By Editorial Staff].

Affirmed.

This action, and the action entitled Jens Jensen, administrator of the estate of Earl Jensen, deceased, against the same defendants, and the action entitled Elsie Vivian Ingle, guardian ad litem of Charles Ingle, an infant, against the same defendants, were considered together in the court below; separate orders and judgments being entered and separate appeals taken. The appeal in each action is from the order of the municipal court of Racine county entered on December 7, 1934, setting aside the alleged service of the summons and complaint on the defendant Harold Peterson, and from the judgment entered by said court on March 30, 1935, dismissing the actions as to said defendant.

These actions arise out of an automobile accident which occurred in Racine county on February 24, 1932, resulting in deaths in two instances, and serious personal injuries in the other. Proper service of the summons and complaint in said actions was had on all defendants, except Harold Peterson, as to whom the question of service is involved on these appeals. At the time of attempted service of the summons and complaint in the respective actions on the defendant Harold Peterson, to wit, on February 23, 1934, he was a minor 19 years of age and had been living away from home, maintaining himself continuously for a period of approximately two years. At said time he was working on a farm in Kenosha county, where he received his board and lodging. Substituted service was attempted by delivering a copy of the summons and complaint to his father, who then resided in the city of Racine. The affidavit of service shows that the father was duly informed as to the contents of the summons and complaint.

On March 7, 1934, Attorney Francis H. Wendt served on the plaintiffs' attorneys a notice of retainer in the usual form, appearing therein as attorney for the defendant Harold Peterson. On March 12th, Attorney Wendt called at the offices of the attorneys for the plaintiffs and requested that the notice of retainer be returned to him. The plaintiffs' attorneys returned same. On March 15th, Attorney Wendt served notice of special appearance and notice of motion on the plaintiffs' attorneys, appearing for purpose of motion only, in which he moved to set aside the service as to the defendant Harold Peterson in the three actions, on the ground that proper service had not been had on said defendant. Thereafter, there were several appointments of a guardian ad litem for said defendant, but in each instance the persons so appointed declined to serve. Finally, on October 23, 1934, Attorney Gerald T. Flynn was appointed guardian ad litem, and qualified as such. As guardian ad litem, he served notice of special appearance on the plaintiffs' attorneys in the three actions, and moved for an order setting aside and vacating the service of the summons, and that the action be dismissed as to said defendant on the ground that the attempted substituted service made on the father on February 23, 1934, was ineffectual and did not give jurisdiction. This motion was granted on November 22, 1934, and on December 7, 1934, the court entered orders setting aside the service and dismissing the actions as to the defendant Harold Peterson. These orders are appealed from.

On November 22, 1934, personal service of a summons and complaint was made on said defendant. On February 6, 1935, a stipulation was entered into between the attorneys for the plaintiffs and the guardian ad litem for the defendant Harold Peterson, to submit the following questions of law to the court:

“(1) Was the personal service of the summons and complaint which was made upon the defendant Harold Peterson on the 22nd day of November, A. D. 1934, within the time limited for service as provided by the statute of limitations?

(2) Are the actions for the wrongful death of Marvin Caskey and Earl Jensen outlawed by the statute of limitations?”

On March 20, 1935, the trial court filed a written decision directing that all three actions as to the defendant Harold Peterson be dismissed on the ground that the actions as to said defendant had not been commenced within the 2-year period, and no notice of claim had been served on said defendant within the 2-year period following the date of accident.

Other material facts will be stated in the opinion.

Ahlgrimm & Hardy, of Racine, for appellant.

Benson & Butchart, Francis H. Wendt, and Gerald T. Flynn, all of Racine, for respondents.

MARTIN, Justice.

Appellants' counsel contends that the substituted service made on Harold Peterson's father on February 23, 1934, constituted a valid service, and, further, that the notice of appearance served by Attorney Wendt on the plaintiffs' attorneys on March 7, 1934, constituted a general appearance in the three actions on behalf of said defendant. Counsel for the respondent Harold Peterson takes issue with this contention.

[1][2] It appears that, for a period of approximately two years immediately prior to February 23, 1934, the respondent Harold Peterson had been away from his father's home, maintaining himself by working for farmers in Kenosha county, where he received his board and lodging. At that time his parents were residing at the city of Racine and he made only occasional visits to their home. Is the substituted service made on the father a legal service? In this connection it may be helpful to consider the question of Harold's emancipation, although that fact was not passed upon by the court below. The father admits that Harold was not dependent upon him; that he was entirely dependent upon himself, and the father made no claim to the wages or income of his son. Emancipation of a minor need not be in any formal manner, but oral expressions of intent or abandonment by the father are sufficient. McMillan v. Page, 71 Wis. 655, 659, 660, 38 N.W. 173;Patek v. Plankinton Packing Company et al., 179 Wis. 442, 447, 190 N.W. 920;Kidd v. Joint School District, 194 Wis. 353, 356, 216 N.W. 499; 46 C.J. 1344. From such evidence as was taken in the court below on the motion to set aside the service of the summons which was made on the father, it appears he made no effort to control Harold's conduct or his wages, such as he received in addition to his board and lodging; the son received and spent his wages without in any way accounting therefor to his father; and the father never made any claim to his son's earnings. On the record here, we entertain no doubt as to the son's emancipation.

[3] Now, as to substituted service of the summons. Section 262.08(4), Stats., specifies the method of service:

“The summons and the accompanying complaint or notice aforesaid shall be served by delivering a copy thereof as follows: * * *

(4) In all other cases to the defendant personally; or, if not found, by leaving a copy thereof at his usual place of abode in presence of some one of the family of suitable age and discretion, who shall be informed of the contents thereof.”

The affidavit of service attached to the summons and complaint shows that a copy thereof was delivered to the father at his residence in the city of Racine, and that the father was informed of the contents thereof; but to hold the service valid, it would be necessary to hold that the father's residence was Harold's “usual place of abode.”

[4] In Healey v. Butler, 66 Wis. 9, 12, 27 N.W. 822, it was held that the last and usual place of abode of a person is necessarily his present usual place of abode. In 21 R.C.L. 1280, it is said:

“The question as to what constitutes a man's ‘usual place of abode’ is not always free from doubt. It has been defined to be the customary or settled place of residence; a regular, fixed and permanent residence as distinguished from a temporary stopping or abiding place. * * * ‘Place of abode’ is sometimes treated as synonymous with ‘domicile,’ or ‘residence.’ But ordinarily ‘usual place of abode’ is a much more restricted term than ‘residence,’ and means the place where the defendant is actually living at the time when service is made. Therefore, ‘usual place of abode’ means ‘present place of abode.’ ” Earle v. McVeigh, 91 U.S. 503, 23 L.Ed. 398; note, Ann.Cas.1912C, 283. In Minnesota Thresher Manufacturing Co. v. L'Heureux, 82 Neb. 692, 118 N.W. 565, the court said: “The terms ‘usual place of residence’ or ‘usual place of abode,’ as used in statutes authorizing substituted service of summons on a defendant, means the place of abode or place of residence...