Lower v. Wilson

• Citation: 9 S.D. 252,68 N.W. 545
• Parties: LOWER v. WILSON et al.
• Decision Date: 10 October 1896
• Court: Supreme Court of South Dakota

9 S.D. 252

68 N.W. 545

LOWER

v.WILSON et al.

Supreme Court of South Dakota.

Oct. 10, 1896.

Appeal from circuit court, Lawrence county; A. J. Plowman, Judge.

Action by H. Grant Lower against James P. Wilson and others. There was a judgment for plaintiff, and defendant Wilson appeals. Affirmed.H. E. Dewey, for appellant. Joseph B. Moore, for respondent.

FULLER, J.

The only service of the summons and complaint in this action upon the defendant James P. Wilson, a practicing attorney, was obtained on the 1st day of August, 1895, at his office, and in his absence, by delivering to and leaving with his clerk, Joseph W. Musgrave, copies thereof. After moving to vacate and set aside the summons and complaint upon the jurisdictional ground that the same had not been properly served, the defendants answered the complaint, and, for a cause of action against plaintiff, interposed a counterclaim, upon which an affirmative judgment for $235 was demanded. A trial to a jury resulted in a verdict and judgment against the defendants in plaintiff's favor, and the defendant Wilson, who alone appeals, assigns as error and for a reversal relies solely upon the ruling of the court upon the motion to vacate and set aside the service of the summons and complaint.

The indubitable purpose of a summons and statutory method of service is to personally apprise the defendant that an action has been commenced, and the nature thereof, so that, within a specified time, he may act advisedly with reference thereto, and, as the statutory requirements were not observed, no legal service was had, and the court thereby acquired no jurisdiction. Mere authority upon the part of Mr. Musgrave to accept, for appellant, Wilson, service of papers in cases where the former had been retained professionally, was wholly insufficient to authorize and render authentic the verbal acceptance of the service of a summons in an action in which said Wilson is sought to be made a party defendant. Comp. Laws, § 4898; Bulkley v. Bulkley, 6 Abb. Prac. 307;Knox v. Miller, 18 Wis. 397;Read v. French, 28 N. Y. 285;Litchfield v. Burwell, 5 How. Prac. 341. However, the failure to pursue any statutory mode of service was waived by appellant, who, by his counterclaim, subjected himself to, and invoked the jurisdiction of, the court by demanding an affirmative judgment, as well as by introducing evidence in support of the issues raised by his counterclaim and respondent's reply thereto. A different conclusion would enable a litigant, while insisting that he is not in court, to demand affirmative relief, which can only be...