First Nat. Bank of Wausau v. Kromer

• Decision Date: 12 December 1905
• Citation: 126 Wis. 436,105 N.W. 823
• Parties: FIRST NAT. BANK OF WAUSAU v. KROMER ET AL.
• Court: Wisconsin Supreme Court

126 Wis. 436

105 N.W. 823

FIRST NAT. BANK OF WAUSAU

v.KROMER ET AL.

Supreme Court of Wisconsin.

Dec. 12, 1905.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by the First National Bank of Wausau against George Kromer and others. From an adverse order, plaintiff appeals. Reversed.

Appeal from the circuit court for Outagamie county. Judgment was entered in plaintiff's favor by default before the clerk December 6, 1899. The action was on contract for the recovery of money. All conditions precedent to the entry of such judgment were satisfied, save and except the filing of proper proof of service of the summons on the defendants. The proof filed was made by a person not an officer, and was fatally defective. Defendants appeared specially for the purpose only of setting aside the judgment as void. Pursuant to defendants' motion in that regard October 17, 1903, the court vacated the judgment. October 9, 1903, a new proof of service, good in form, by the person who made the previous defective proof was filed with the clerk of the circuit court, and thereupon on application of the plaintiff he re-entered judgment. October 17, 1903, the second judgment was vacated upon the ground that the clerk had no jurisdiction to enter the same. Thereafter application was made to the circuit court for judgment. At first the court regarded the only question for consideration to be whether the service was actually made upon the defendant or not. The matter in that regard was referred to a referee to take proof and report the same with findings. The result of the proceedings before the referee was a finding that service was made upon defendant, as indicated in the second affidavit of service. A motion was thereupon made to confirm such finding and for judgment by default, which motion was denied upon the ground that by reason of the order of October 17, 1903, vacating the first judgment the court had no further jurisdiction in the premises.

From the order accordingly entered this appeal was taken.Kreutzer, Bird & Rosenberry, for appellant.

G. H. Dawson, Henry D. Ryan, and J. E. Lehr, for respondents.

MARSHALL, J. (after stating the facts).

The question here for solution is this: The trial court having vacated a judgment entered before its clerk under section 2891, Rev. St. 1898, as void because the proof of service of the summons upon the defendants, purporting to have been made by a person other than an officer, was insufficient; and such person having made a new proof of service, good in form, upon which a second judgment was entered before such clerk, which upon a contest before the court as to whether there was such service in fact, and as to whether there was such service, the previous order of the court did not prevent its proceeding further, was set aside upon the ground that the clerk was without jurisdiction in the matter,--had such court authority,--upon application to it for judgment, and upon being satisfied by competent proof that service of the summons was actually made upon the defendants as stated in the return,--to enter judgment in plaintiff's favor, there being no other objections thereto than such as went either to the fact of service, or validity of the proof thereof, or the jurisdiction of the court in the premises.

No question is raised as to the validity of the return of service as finally made, except that it was not competent for one not an officer to amend his return. No reason is suggested why it should be held that the power to amend a return of service is different as to an officer than one not an officer, except that counsel has been unable to find any authority in the written law, or otherwise, permitting such an amendment by the latter. Counsel's labor was evidently just as unfruitful as regards finding authority that the power of amendment in such cases is limited to officers. It would seem that the statute which authorizesa private person in lieu of an officer to serve the summons and prescribes the essentials of the return, by necessary implication gives such person authority to amend such return to the same extent as an officer might under the same circumstances. In the absence of express authority against that view we should be inclined to so hold. The dearth of authority to the contrary suggests that no co...