Fontaine v. Milwaukee County Expressway Commission
| Decision Date | 07 June 1966 |
| Citation | 31 Wis.2d 275,143 N.W.2d 3 |
| Parties | Myrtle FONTAINE, Respondent, v. MILWAUKEE COUNTY EXPRESSWAY COMMISSION, Appellant. |
| Court | Wisconsin Supreme Court |
Robert P. Russell, Corp. Counsel, Hugh R. Braun, Asst. Corp. Counsel, Milwaukee, for appellant.
Roland J. Steinle, Sr., Gregory Gramling, Jr., Milwaukee, for respondent.
We must determine wehther the following legend written on the notice of appeal was sufficient to give the circuit court jurisdiction over Myrtle Fontaine even though she was not otherwise served with process:
'Copy Rec'd
Aug 19 1965
Roland J. Steinle, Sr.
and Gregory Gramling, Jr.
Attys. for Myrtle Fontaine
by Gregory Gramling, Jr.'
The appellant urges that sec. 269.37, Stats., is applicable and that service on the attorneys was sufficient since the latter had previously appeared on behalf of Mrs. Fontaine. There is a flaw in this argument: Sec. 269.37 applies only when the attorney has appeared for a party in an 'action or proceeding.' The matter in which counsel had appeared before the condemnation commission was not such an 'action or proceeding;' it was an administrative hearing. The appeal from the condemnation commission's award to the circuit court is an 'action' pursuant to sec. 32.05(10)(a), which provides as follows:
Sec. 269.37, Stats., is a part of Title XXV; it applies only to an 'action or proceeding,' and that means a judicial action or proceeding. Sec. 260.01. We therefore conclude that sec. 269.37 could have no application to the hearing which was held by the condemnation commission under ch. 32. That the hearing before the condemnation commission was administrative and not judicial is clear from the following decisions: Millard v. Columbia County Highway Comm. (1964), 25 Wis.2d 425, 428, 130 N.W.2d 861; State ex rel. City of Milwaukee v. Circuit Court (1958), 3 Wis.2d 439, 446, 88 N.W.2d 339; Madison v. Tiedeman (1957), 1 Wis.2d 136, 142, 83 N.W.2d 694; Klump v. Cybulski (1957), 274 Wis. 604, 614, 81 N.W.2d 42; Borgnis v. Falk Co. (1911), 147 Wis. 327, 358, 133 N.W. 209, 37 L.R.A., N.S., 489.
The fact that Attorneys Steinle and Gramling appeared before the condemnation commission did not, therefore, enable the expressway commission to effect service upon such counsel under the authority of sec. 269.37, Stats. However, the existence of such prior representation can be a factor in determining whether an agency had been created which enabled her attorneys to accept process under sec. 262.06(1)(d).
When an attorney at law formally acknowledges the receipt of a document as an attorney on behalf of a client, it may be presumed (in the absence of contradiction) that he was authorized by the client to accept it. In the instant case, no evidence whatsoever was offered by Messrs. Steinle and Gramling or by Mrs. Fontaine to demonstrate that the attorneys did not have authority to act as her agent. The fact that the attorneys had represented Mrs. Fontaine in the administrative hearing previously held by the condemnation commission lends additional support to the prima facie case of agency which arose from the written...
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State ex rel. Jones v. Gerhardstein
...was accepting the amended documents as attorney "on behalf of" the doctor. This court stated in Fontaine v. Milwaukee County Expressway Comm., 31 Wis.2d 275, 279, 143 N.W.2d 3 (1966): "When an attorney-at-law formally acknowledges the receipt of a document as an attorney on behalf of a clie......
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Mared Industries, Inc. v. Mansfield, 03-0097.
...of the summons for the defendant."7 Id. ¶17 Consistent with Howard, and underlying this court's decision in Fontaine v. Milwaukee County Expressway Commission, 31 Wis. 2d 275, 279, 143 Wis. 2d 3 (1966), was the acceptance that agency service under what is now Wis. Stat. § 801.11(1)(d) was n......
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Chevrolet Division, General Motors Corp. v. Industrial Commission
...Comm. (1949), 256 Wis. 248, 40 N.W.2d 586.10 Wichman v. Industrial Comm. (1941), 237 Wis. 13, 296 N.W. 78.11 Sec. 260.01, Stats.12 Wis., 143 N.W.2d 3.13 (1959), 8 Wis.2d 620, 626, 99 N.W.2d 726, ...
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Mared Industries, Inc. v. Mansfield, Appeal No. 03-0097 (Wis. App. 11/4/2003)
...by law to accept service of the summons for the defendant." See Wis. Stat. § 801.11(1)(d). ¶13. In Fontaine v. Milwaukee County Expressway Commission, 31 Wis. 2d 275, 143 N.W.2d 3 (1966), the supreme court read the predecessor statute in a similar manner and held that "in the absence of pro......
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Service upon agent in lieu of service upon individual permissible.
...law to accept service of the summons for the defendant(emphasis in original).'"Citing Fontaine v. Milwaukee County Expressway Commission, 31 Wis. 2d 275, 143 N.W.2d 3 (1966), which interpreted the predecessor statute to sec. 801.11, the court held, "according to Fontaine, it appears that th......