City of Watertown v. Robinson

• Decision Date: 20 September 1887
• Parties: CITY OF WATERTOWN AND OTHERS, IMPLEADED, v. ROBINSON.
• Court: Wisconsin Supreme Court

69 Wis. 230

34 N.W. 139

CITY OF WATERTOWN AND OTHERS, IMPLEADED,

v.ROBINSON.

Supreme Court of Wisconsin.

September 20, 1887.

Writ of error to circuit court, Jefferson county.C. H. Gardner, Geo. W. Bird, and Daniel Hall, for plaintiffs in error.

Harlow Pease, for defendant in error.

ORTON, J.

The defendant in error was injured by the falling of a derrick used in the building of a bridge within the city of Watertown, by the negligence of its officers, agents, or employes. The action is brought against the said city, together with the several members of the board of street commissioners thereof, and service was had upon all but one of said commissioners. The only pretended service upon the city, as a municipal corporation, was by delivering a copy of the summons and complaint to, and leaving the same with, one Ulrich Habhegger, chairman of said board of street commissioners, while said board was in session, and while said Habhegger was presiding as chairman thereof, at a regular meeting of said board, and to and with Henry Bieber, the clerk of said city. At the time of such pretended service there was no mayor of said city, and there was a vacancy in said office, and there was no president or presiding officer of the common council of said city. The street commissioners answered, and upon the trial there was a verdict and judgment in their favor, but the city of Watertown did not appear or answer, but made default, and on the trial there was a verdict and judgment against said city. The city of Watertown has brought said judgment into this court by writ of error, and upon the record asks that it be reversed, because the circuit court acquired no jurisdiction of said city.

The sufficiency of said service upon the city is the only question in this case. It is urged by the learned counsel of the plaintiff in error that this court, in Watertown v. Robinson, 59 Wis. 513, 17 N. W. Rep. 542, on motion for rehearing, with offer of proof that in that case the office of mayor was vacant, decided that, such proof being admitted, and the return being so amended, the service was yet insufficient. There was no opinion on that motion, but it was probably and more properly held that such an amendment of the return could not be made in this court. In Heymann v. Cunningham, 51 Wis. 506, 8 N. W. Rep. 401, where the service was made when there was no mayor, great doubts are expressed “upon the sufficiency of the service to give the court jurisdiction of the defendant city,” but the decision of that question was not deemed necessary to the determination of the rights of the appellant in that proceeding, and it was not therefore passed upon. In Worts v. Watertown, 16 Fed. Rep. 534, the service was made as here, and the office of mayor was vacant. It was first held by Judge BUNN and Mr. Justice HARLAN that such service was sufficient; but it seems that this decision was afterwards overruled, and the judgment was set aside, by the same learned judges, and the service held insufficient, upon a full argument of the question. It was held in Watertown v. Robinson, supra, that delivering to, and leaving with, the chairman of the street commissioners a copy of the summons in the absence of the mayor, and the sheriff's inability to find him, was insufficient. In that case it was said in the opinion that “the principle is too elementary to need discussion that a court can only acquire jurisdiction of a party, when there is no apperrance, by the service of process in the manner prescribed by law.” Another principle is equally clear, and that is that when the statute prescribes a particular mode of service that mode must be followed ita lex scripta est. There is no chance to speculate whether some other mode will not answer as well. Helms v. Chadbourne, 45 Wis. 60. This has been too often held by this court to require further citations, but the strong language of Chief Justice RYAN, in Foster v. Hammond. 37 Wis. 187, is worthy of special reference. See, also, other authorities cited in the very able brief of the counsel for the plaintiff in error. And here it is sufficient to say that every possible reason against the strict application of the statute prescribing the mode of service, in a case like this, including the constitutional objection, is satisfactorily urged and conclusively enforced in the brief of counsel for plaintiff in error, to which reference may be had. In many cases the officer or agent of a corporation upon whom service of a summons is required to be made, may not for a time be in existence, and there may be a vacancy in such office. This is only a temporary inconvenience that must necessarily be suffered until there is such an officer. There is the office of mayor, and it is possible to have a mayor in the city of Watertown. So that is no defect in the law in not providing a mode of service in such cases, and in all similar cases there may be for the time a vacancy, and thereby service rendered impossible; but this is no defect in the law, nor would it justify courts in substituting another mode of service, which the law has not done. This would be judicial legislation of the most flagrant kind. The mode of service upon cities generally is prescribed by subdivision 3 of section 2637, Rev. St., which is by delivering a copy of the summons, etc., “to the mayor and city clerk.” The more restrictive mode provided in the charter of the city of Watertown, (section 8, subc. 9, c. 233, Laws of 1865,) is by leaving a copy of process with the mayor. In either case, the delivering of a copy of the process to the mayor, and leaving it with him, are required in all cases, unless waived, to give the court jurisdiction of a city as a party defendant.

The only question is, what does the statute mean when it designates a particular officer, such as the mayor, by name, upon whom such representative service may be made? The reason of the law unquestionably is to designate some officer of the city, of such powers, grade, and dignity, as would imply a supervision and management of the interests and affairs of the city, and who would most properly and likely take care of, and protect the interests of, the city as a defendant in court. The legislature in its wisdom has seen fit to designate the mayor eo nomine as such officer. When such an officer de jure, and in the most comprehensive sense, does not exist, and the office as such is vacant for the time, has the law provided, in terms or spirit, that some other officer or person who for the...