Mech v. Borowski, 83-541
| Decision Date | 06 December 1983 |
| Docket Number | No. 83-541,83-541 |
| Citation | 116 Wis.2d 683,342 N.W.2d 759 |
| Parties | Cynthia C. MECH, nee Stewart, Plaintiff-Appellant, v. Ralph BOROWSKI, Mary K. Borowski and General Casualty Company, Defendants-Respondents. * |
| Court | Wisconsin Court of Appeals |
Lowe, Schmidthuber & Lindell and Larry M. Schmidthuber, Minneapolis, Minn., for plaintiff-appellant; David J. Estreen, Hudson, of counsel.
Wilcox & Wilcox and Daniel A. Enright, Eau Claire, for defendants-respondents.
Before FOLEY, P.J., and DEAN and CANE, JJ.
Cynthia Mech appeals from a judgment dismissing her personal injury action. The court ruled that it did not have jurisdiction because Mech served a copy of her summons and complaint on the defendants before, rather than after, filing the original summons and complaint. No authenticated copies of the summons and complaint were served on the defendants after the filing. The sole issue is whether the service of a summons and complaint on a defendant before the action is commenced by filing is ineffective for the court to acquire jurisdiction over the defendant. Because the prescribed statutory procedures for commencing a civil action in which a personal judgment is sought were not complied with, the court lacked jurisdiction over the defendants. We therefore affirm the judgment.
The statutes that establish the procedure for commencing a civil action in which a personal judgment is sought are rules 801.02 and 893.02, Stats. 1
Rule 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.
Rule 801.02(3), Stats., provides in part:
The original summons and complaint shall be filed together. The authenticated copies shall be served together except:
(a) ... if the summons is served by publication.
Rule 801.02(4), Stats., provides in part:
No service shall be made under sub. (3) until the action has been commenced in accordance with sub. (1).
Rather than following this statutory procedure, Mech first served the defendants with copies of the summons and complaint. Eight days later, on October 29, 1982, the original summons and complaint along with the affidavits of service and necessary fees were filed with the court. 2 Subsequent to the filing, no copies of the summons and complaint were served on the defendants. The three-year statute of limitations for this personal injury action expired on November 21, 1982.
Mech contends that because the defendants received notice of the action prior to the statute of limitations expiring, they were not prejudiced by receiving service of the summons and complaint ten days previous to the filing of the action. She argues that the premature service on the defendants is harmless error, and that to dismiss her case for lack of jurisdiction is contrary to the equitable doctrine of fairness.
Wisconsin requires strict compliance with its rules of statutory service, even though the consequences may appear to be harsh. In Danielson v. Brody Seating Co., 71 Wis.2d 424, 428-29, 238 N.W.2d 531, 533-34 (1976), our supreme court held that the service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, even though a different method might properly have been prescribed, and despite actual knowledge by the defendant. When a statute provides for service that confers jurisdiction over a party, there must be strict compliance with statutory service requirements. 519 Corporation v. State Department of Transportation, 92 Wis.2d 276, 287, 284 N.W.2d 643, 649 (1979). Even though failure to comply with the service requirements will result in a dismissal of the action and appear harsh under the circumstances, strict adherence to the procedural provisions is required. Id. at 288, 284 N.W.2d at 649. Uniformity, consistency, and...
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Fortier v. Flambeau Plastics Co., a Div. of Flambeau Corp.
...fee is part of the filing process, and since service before filing results in no action being commenced, Mech v. Borowski, 116 Wis.2d 683, 686-87, 342 N.W.2d 759, 760-61 (Ct.App.1983) and Hester v. Williams, 117 Wis.2d 634, 640-41, 345 N.W.2d 426, 429-30 (1984), plaintiffs' failure to pay t......
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Johnson v. Cintas Corp. No. 2
...even though the consequences may appear to be harsh.’ ” Am. Family, 167 Wis.2d at 531, 481 N.W.2d 629 (quoting Mech v. Borowski, 116 Wis.2d 683, 686, 342 N.W.2d 759 (Ct.App.1983)). In particular, “[t]he service of a summons in a manner prescribed by statute is a condition precedent to a val......
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Bendimez v. Neidermire, 98-0656
...Id. at 827-28, 528 N.W.2d at 22. 2 In its decision, Dietrich relied on the fundamental principals set forth in Mech v. Borowski, 116 Wis.2d 683, 342 N.W.2d 759 (Ct.App.1983), which mandate strict compliance with the procedures of statutory service to fulfill the statute's purpose of attaini......
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