Hammond-Chandler Lumber Co. v. Indus. Comm'n of Wis.

• Decision Date: 13 June 1916
• Citation: 158 N.W. 292,163 Wis. 596
• Parties: HAMMOND-CHANDLER LUMBER CO. ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 596

158 N.W. 292

HAMMOND-CHANDLER LUMBER CO. ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

June 13, 1916.

Syllabus by the Judge.

Only a party aggrieved by a judgment can appeal therefrom.

Where a party to an action, who is not aggrieved by the judgment rendered therein, appeals therefrom, the appeal should be dismissed.

An order denying a motion to set aside a summons is not appealable.

If, notwithstanding denial of the motion of one party defendant to set aside the summons and dismiss the proceedings, a like motion by a co-defendant is granted and a judgment of dismissal is rendered, the one whose motion was denied cannot appeal from such judgment as an aggrieved party.

A summons signed by nonresident attorneys is not wholly void; it is only irregular and the service thereof affords the court jurisdiction to allow such summons to be perfected by amendment.

The rule that a matter which is wholly void cannot be amended does not extend to irregularities, not going to jurisdiction, which are amendable under Section 2830 for the purpose, and subject to the conditions and restrictions therein mentioned.

Under Section 2830, Stats., the only limit to the power of amendment, when applied for in due course, is that it must be exercised “in furtherance of justice,” the only condition of such exercise is that it must be upon such terms as may be just, and the scope of it includes all proceedings in any action and mistakes in any respect.

The rule that a void proceeding is not amendable applies only where there was no power to do the thing attempted to be done in a defective manner; given power to do the thing, and a good faith, but defective way of doing it, and the infirmity is curable by amendment under Section 2830, Stats., for the purposes, and subject to the condition and restrictions therein mentioned.

The language of Section 2394--19, Stats., to the effect that service upon the Industrial Commission in a specified way shall be deemed a completed service, relates only to service on the Commission.

The requirement of Section 2394--19, that the adverse party shall be joined as a defendant with the Industrial Commission, by necessary implication, requires service of the summons to be made upon such party, and that he be accorded all rights of a defendant, in an action.

Additional Syllabus by Editorial Staff.

A summons is not a process, but a mere statutory notice.

Appeals from a Judgment and Order of the Circuit Court for Dane County; E. Ray Stevens, Circuit Judge. Reversed.

Action to set aside an award of the Industrial Commission, made in due course, on account of the injury and death of John G. Peterson.

Mr. Peterson was injured while engaged at his work as an employee of plaintiff, Hammond-Chandler Lumber Co., which was subject to the Workmen's Compensation Act (Laws 1911, c. 50), and was insured against losses within the scope of such act by defendant, Lumbermen's Casualty Company. Peterson died from his injury. Such proceedings were thereafter duly taken, upon the application of defendant, Nelson, as guardian of the minor son of deceased, that the Industrial Commission awarded compensation for such injury and death. The award was made August 15, 1915. September 15, thereafter, by a summons and complaint in due form, but signed by nonresident attorneys having their place of business at Minneapolis, Minnesota, the Lumber Company attempted to commence an action in the Circuit Court for Dane County, Wisconsin, to set aside such award. S. M. Wilcox, member of the Industrial Commission, by a writing endorsed on the papers, admitted service of a copy thereof. The attorney for the applicant verbally agreed to accept service of such papers for him with the same effect as if they were served on such applicant, personally, and pursuant thereto a copy thereof was sent to such attorney, by mail, and received. The Industrial Commission appeared specially in the Circuit Court and moved to quash the summons upon the ground that it was not issued by any person or persons authorized to issue summonses in this state. The applicant likewise appeared and moved the court. October 27, 1915, a decision was announced that the motion of the Industrial Commission would be denied upon the ground that it waived the defect in the summons by one of its members signing the admission of service. January 6, 1916, the court announced a decision that the motion of the applicant would be granted upon the ground that no such summons as the statute requires was served on him, and there was no waiver of such service. The next day proceedings were duly commenced to obtain an amendment perfecting the summons and complaint by adding the name and residence of a Wisconsin attorney. The motion in respect to the matter was seasonably heard. It was supported by proof that the irregularity in the summons was the result of excusable neglect and that some of the attorneys who did sign formerly were members of the bar of Wisconsin, and that their names still remained on the official roll of attorneys of such bar. February 2, 1916, a formal order was entered denying the motion of the IndustrialCommission to quash the summons and granting the like motion of the applicant, and judgment was rendered dismissing the action.

The plaintiff appealed from that part of the judgment which denied the motion to amend; that part which granted the motion to quash, and that part dismissing the action. The Industrial Commission appealed from that part of the judgment denying its motion to quash.

Adams, Crews, Bobb & Wescott, of Chicago, Ill., and C. R. Welton, of Madison, for appellants.

W. C. Owen, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondents.

MARSHALL, J.

[1][2] Only a party aggrieved by a judgment can appeal therefrom. Powers v. Powers, 145 Wis. 671, 130 N. W. 888;Larson v. Oisefos, 118 Wis. 368, 95 N. W. 399. Where the party appealing is not in any way aggrieved, the appeal should be dismissed. Amory v. Amory, 26 Wis. 152.

[3] We are unable to discover wherein the Industrial Commission is aggrieved here. It could not have appealed from the order denying its motion to set aside the summons because such an order does not fall within the appeal statute. Section 3069. It is not prejudiced by the judgment because, thereby, it, indirectly, obtained what it sought by its motion. Really, it finds no fault with the judgment and desires to have it affirmed.

[4] For the reasons stated the appeal by the Industrial Commission must be dismissed. That does not militate against it, as respondent on the appeal by the Lumber Company and the Casualty Company, contending for an affirmance of the judgment upon the ground that it is right, whether rightly grounded by the trial court or not.

[5][6] The idea which prevailed below was that a summons, signed by nonresident attorneys, is wholly void, not merely irregular and within the amendable defects provided for by Section 2830, Stats., reliance being placed on Whitney v. Brunette, 15 Wis. 61, 70. It was there said, by Mr. Justice Paine, that a matter which is wholly void is not subject to amendment under the statute. The remark was not necessary to the decision and not concurred in by Chief Justice Dixon. It voiced a common law rule which was, in great measure, at least, displaced by the code. It has not been applied except in very extreme cases though, instead of being rejected or modified, expressly, it has been rendered quite harmless by defects, in most cases, being classed as irregularities, and hence subject to be disregarded under Section 2829, Stats., or to be cured by amendment under Section 2830, Stats.

[7] The latter section, in its letter, is very broad. It should be read in its broad...