J. M. S. v. Benson

• Decision Date: 23 August 1979
• Docket Number: No. 78-246,78-246
• Citation: 283 N.W.2d 465,91 Wis.2d 526
• Parties: J. M. S., by his Guardian ad Litem, Daphne Webb, Plaintiff-Respondent, v. Robert BENSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 465

283 N.W.2d 465

91 Wis.2d 526

J. M. S., by his Guardian ad Litem, Daphne Webb, Plaintiff-Respondent, v. Robert BENSON, Defendant-Appellant.

No. 78-246.

Court of Appeals of Wisconsin.

Argued May 3, 1979.

Opinion Released Aug. 23, 1979.

Opinion Filed August 23, 1979.

Review Granted.

Larry A. Haukom (argued), and Haukom & Ritchie, Madison, on brief, for defendant-appellant.

Daphne Webb (argued), and Jacobs, Webb & Weiden, Madison, on brief, for plaintiff-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Justice.

This is an action by an illegitimate child for judgment declaring that defendant is plaintiff's father, for judgment against defendant in the amount of $20,000 for back support not provided by defendant, for an order requiring defendant to pay future support and for attorney's fees. ¹

The complaint alleges that defendant is the father of plaintiff, that plaintiff was born in March, 1965 in Wisconsin, that defendant and plaintiff's mother are not and never have been married to each other and that defendant has failed to support plaintiff.

Defendant moved to dismiss the complaint on grounds that the copies of the summons and complaint served upon the defendant were not authenticated, as required by sec. 801.02(1), Stats., that the complaint fails to state a claim upon which relief can be granted and that the action is barred by the statute of limitations.

Plaintiff submitted an affidavit in opposition to the first ground for the motion to dismiss. The facts stated in the affidavit are uncontested. A preliminary hearing was held pursuant to sec. 802.06(4), Stats., regarding the statute of limitations issue. May 2, 1978, the circuit court overruled defendant's motion to dismiss. Appeal was taken to the supreme court ² which transferred jurisdiction to the court of appeals pursuant to sec. 131, ch. 187, Laws of 1977.

The issues are:

1. Is service of true but improperly authenticated copies of the summons and complaint sufficient under sec. 801.02(1), Stats., where the clerk of courts failed properly to authenticate the copies?

2. May an illegitimate child bring an action to have a specific man declared to be that child's natural father during the father's lifetime?

3. Is such an action subject to a statute of limitation?

4. Does the natural father of an illegitimate child have a duty to support the child under the common law of this state?

The circuit court held that this action may be maintained and that the father of an illegitimate child has a duty to support the child. The court did not discuss the liability of the father of an illegitimate child to the child for past support provided by other persons or for attorneys fees in establishing paternity and liability for support. Those issues have not been briefed. We consider that those issues are not before us.

1. Failure To Serve Properly Authenticated Copies

Section 801.02(1), Stats., provides,

A civil action in which a personal judgment is sought, . . . is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 60 days after filing.

Plaintiff's attorney submitted the original summons and complaint to the Dane County clerk of courts for filing some time in late October, 1976. A deputy clerk refused to accept the summons and complaint for filing and referred the attorney to the criminal and traffic division of the clerk's office. A deputy clerk in that division told the attorney that the complaint had to be served before it could be filed. The summons and complaint were personally served on defendant November 2, 1976.

The original summons and complaint and proof of service were not resubmitted to the clerk and are not part of the record on appeal. An amended summons and complaint were served on the defendant January 7, 1977, and were filed with the criminal and traffic division of the clerk of courts January 24, 1977. The attorney asked the clerk for authenticated copies of the amended summons and complaint. The clerk stamped copies with a stamp showing "Criminal & Traffic Courts, Dane County, Wis. Filed Jan 24 8:20 AM '77.

Section 801.09(4), Stats., provides in relevant part, "Authentication shall be accomplished by the clerk's placing a filing stamp indicating the case number on each copy of the summons and the complaint." The filing stamp used by the clerk did not show the case number. The stamped copies were served on the defendant personally March 7, 1977.

We hold that failure of the stamp to show the case number on the copies served is inconsequential.

Service of a summons fulfills two functions: first, the content of the summons is a notice to the defendant that an action has been brought; second, service of the summons is in most instances necessary to give the court jurisdiction over the defendant's person. Lees v. ILHR Department, 49 Wis.2d 491, 497, 182 N.W.2d 245 (1971).

The purpose of a summons is to give notice to the defendant that an action has been commenced against him. Lees v. ILHR Department, 49 Wis.3d 491, 497, 182 N.W.2d 245; Hoesley v. La Crosse VFW Chapter, 46 Wis.2d 501, 503, 175 N.W.2d 214 (1970); Milwaukee County v. Schmidt, Garden & Erikson, 35 Wis.2d 33, 36, 150 N.W.2d 354 (1967), and cases cited. A summons is not a process in this state, State ex rel. Walling v. Sullivan, 245 Wis. 180, 189, 13 N.W.2d 550 (1944), although it is part of the process system. Westport v. Madison, 247 Wis. 326, 328, 19 N.W.2d 309 (1945). A summons, as a notice, may contain minor nonmisleading inaccuracies which do not void its service. Hoesley v. La Crosse VFW Chapter, 46 Wis.2d 501, 175 N.W.2d 214; Westport v. Madison, 247 Wis. 326, 19 N.W.2d 309.

The authentication required by sec. 801.02(1), Stats., only provides assurance by the clerk that the copy served is a true copy of the original filed with the clerk and provides the case number of the action or proceedings. Authentication is part of the notice function of the summons.

The action was properly commenced by filing the summons and complaint and copies of the summons and complaint were served within the time required by sec. 801.02(1), Stats. Defendant makes no claim that the copies served upon him varied from the originals filed with the clerk or that he was in any way misled by the lack of a case number.

2. Right Of Illegitimate Child To Declaratory Judgment Determining Paternity

It has been said many times that paternity proceedings are statutory. State ex rel Lyons v. De Valk, 47 Wis.2d 200, 203, 177 N.W.2d 106 (1970); State ex rel. Sowle v. Brittich, 7 Wis.2d 353, 358, 96 N.W.2d 337 (1959); State ex rel. Lang v. Civil Court, 228 Wis. 411, 414, 280 N.W. 347 (1938); Goyke v. State, 136 Wis. 557, 559, 117 N.W. 1027 (1908); Pierstoff v. Jorges and another, 86 Wis. 128, 137, 56 N.W. 735 (1893).

Paternity proceedings are governed by secs. 52.21 through 52.45, Stats., no part of which permits a child independently to establish its paternity. Section 52.24 permits the state through the district attorney to commence paternity proceedings. Sections 52.22 and 52.25 permit the mother to initiate paternity proceedings by making complaint to the district attorney, subject to control by the district attorney of the proceeding until a warrant or summons issues, after which the mother may employ private counsel. State ex rel. Smith v. Chicks, 70 Wis.2d 833, 835a, 235 N.W.2d 694, Reh. 239 N.W.2d 9 (1975). It is only if the mother is dead, becomes insane, cannot be found in the jurisdiction or fails to prosecute that the child is substituted as a complainant, as provided in sec. 52.35, and the case is then prosecuted as provided in sec. 52.23. The latter statute requires the district attorney, if he determines it to be in the best interests of the child, to prosecute the proceeding to final judgment. If the putative father has not made provision for support by giving bond or by settlement under sec. 52.21 Et seq., an illegitimate child may initiate a nonsupport action under sec. 52.05(1) and (2) and probably under sec. 52.055(1) upon complaint. A finding of paternity could result under either section. However, both secs. 52.05(1) and 52.055(1) provide for fine or imprisonment upon conviction and are therefore criminal proceedings which must be prosecuted by the district attorney. Secs. 59.47 and 939.12. The duty to support could also be enforced through sec. 52.01, but only by the district attorney. Sec. 52.01(2).

Plaintiff's mother attempted in 1967 to have paternity proceedings initiated by the district attorney against defendant. The district attorney refused. No paternity proceedings were ever initiated by the mother or district attorney and such proceedings are now barred by the five year statute of limitation provided by sec. 893.195, Stats.

The lack of a specific statutory procedure by which a child may independently establish its paternity is not, however, a bar to an action for that purpose. Slawek v. Stroh, 62 Wis.2d 295, 304, 215 N.W.2d 9, 15 (1974), held that the putative father of an illegitimate child has "the constitutional right to establish, if he can, his natural parentage, to assert parental rights, and a legal forum with due process procedures to establish these rights." No specific statutory procedure existed at that time by which a putative father could establish his paternity of a specific child. The court therefore held that the Declaratory Judgments Act, sec. 269.56(1), Stats.1973, now numbered sec. 806.04(1), Stats., was available to the putative father to assert his claim.

We hold that the right of a child to establish that a particular man is the child's natural father equals the right of a father to establish his paternity of a specific child. The issue is one of status, of parenthood. It would be...