Day v. Mertlock

• Decision Date: 01 May 1894
• Citation: 87 Wis. 577,58 N.W. 1037
• Parties: DAY v. MERTLOCK.
• Court: Wisconsin Supreme Court

87 Wis. 577

58 N.W. 1037

DAY

v.MERTLOCK.

Supreme Court of Wisconsin.

May 1, 1894.

Appeal from circuit court, Monroe county; A. W. Newman, Judge.

Trespass by Calvin Day against Frank Mertlock. Judgment for plaintiff on defendant's default. Defendant's motion to set aside granted, and 20 days given him to answer. Plaintiff appeals. Reversed.Jones & Button, for appellant.

Morrow & Masters, for respondent.

ORTON, C. J.

This is an appeal from an order setting aside the judgment rendered in this case, and permitting the defendant to serve an answer herein within 20 days. The summons, with the venue laid in circuit court, “La Crosse county,” was served September 12, 1892. Notice of retainer by Messrs. Morrow & Masters, attorneys for the defendant, served September 21st, and a copy of the complaint demanded. Due service of the complaint admitted by said attorneys October 7th. The complaint returned, October 8th, with the following indorsement thereon: “The within complaint is returned, for the reason that any admission of service thereof was unauthorized, and was made by mistake. We have never been retained in the action entitled in the complaint.” The venue in the complaint was laid, “Monroe county,” and otherwise the title was the same as in the summons. December 19th, on the affidavit of one of the attorneys of the plaintiff that 20 days had elapsed since the service of the summons, and that no answer or demurrer to the complaint or notice of appearance had been served, the court rendered judgment in favor of the plaintiff for $50 damages and $22.56 costs, reciting therein that it appearing to the court, by due proof, that all the material allegations of the complaint are true, and that the plaintiff was the owner of the lands described in the complaint; and that the defendant forcibly broke and entered upon a portion of the same, plowed it, trod down the grass, took down the fences, destroyed fruit trees, and otherwise injured the premises; and that by reason thereof plaintiff was damaged in the sum of $50. The case was tried, and judgment rendered in open court, while one of the attorneys of the defendant was present in court, and said nothing. On the 23d day of February, 1893, the defendant made his affidavit, setting forth that he is a resident of Monroe county, “and that he has fully and fairly stated his case in said cause, as appears from said complaint on file with said judgment roll, to Morrow & Masters, of Sparta, Wisconsin, his attorneys; and, after said judgment, is advised by his said counsel that he has a complete and valid defense to said action upon the merits, and believes the same to be true;” and that no summons in said action was ever served upon him. Then it is stated in said affidavit, in effect, that the said summons, with the venue laid in circuit court, La Crosse county, was served upon him as stated above. On Febuary 27th, and on said affidavit and judgment roll, the defendant obtained a rule to show cause why the judgment should not be set aside, etc., on the ground that no summons in the action was ever served on the defendant. This motion was denied, with $10 costs, on May 4, 1893. On the 6th day of May, 1893, another rule was obtained to show cause why the motion of the defendant should not be granted, and the judgment be set aside, and the plaintiff required to serve his complaint and other papers in accordance with the notice of appearance and demand served on the defendant's attorneys on the 21st day of September, 1892. This rule is founded on the affidavits of the defendant and of his attorney, C. M. Masters, Esq., and on the judgment roll, etc. The plaintiff's attorney, D. F. Jones, Esq., also made an affidavit, setting forth the above facts, but more fully. The grounds of the motion are: (1) No summons in said action in said circuit court for Monroe county was ever served. (2) No complaint conforming to the summons was ever served. (3) No summons or complaint in said action was filed at or before the judgment was rendered. (4) No notice of application for judgment was ever given or served. (5) The judgment does not conform to the findings of the court. (6) Costs, as taxed, are excessive, not proved, and unauthorized. From the order of the court granting this motion, setting aside the judgment, and giving the defendant 20 days in which to serve an answer, and with costs, this appeal has been taken by the plaintiff.

The venue of the summons at La Crosse county was a mere clerical error or mistake, and the attorneys of the plaintiff were not aware of the mistake until after the motion to set aside the judgment. They supposed that the summons conformed to the complaint with the venue at Monroe county. They were not informed of the discrepancy by the notice returning the complaint. They supposed that the attorneys meant by the language, “We have not been retained in the action entitled in the complaint,” that the mistake was that they had not been retained by the defendant, and therefore returned the copy of the complaint, and withdrew their appearance. This appears from the affidavit of D. F. Jones, Esq., one of the attorneys of the plaintiff.

First. This was a mistake that the court could have corrected at any time, when brought to its attention. 3 Am. & Eng. Enc. Law, 286, and authorities in note 1.

Second. If the defendant's counsel had returned the complaint, and withdrawn their appearance, for the true reason that the complaint did not agree with the summons in the venue, the mistake could then have been corrected without harm to any one, under section 2830, Rev. St. When the defendant's counsel received the complaint, they had notice that there was a mistake in the venue of the summons, and the defendant is chargeable with that knowledge; and, they having knowledge then that it was a mere mistake, it did them no harm.

Third. It was the duty of the defendant's counsel to have specifically called the attention of the plaintiff's counsel to this obvious mistake when they returned the complaint.

Fourth. The defendant's counsel misled and deceived the plaintiff's counsel as to the cause of returning the complaint, and used language that clearly implied that they accepted service as the attorneys of the defendant by mistake, when they had not been retained by...