Mezchen v. More

• Decision Date: 07 February 1882
• Citation: 54 Wis. 214,11 N.W. 534
• Parties: MEZCHEN v. MORE, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

54 Wis. 214

11 N.W. 534

MEZCHEN

v.MORE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Milwaukee county.Frank B. Van Valkenburg and Jenkins, Elliott & Winkler, for appellant.

John J. Orton, for respondents.

TAYLOR, J.

This is an appeal from an order of the circuit court of Milwaukee county setting aside the judgment, mortgage sale, and all other proceedings in the action, because the original summons in the action had the names of the attorneys who issued the same printed thereon. The defendants did not appear in the action, and judgment was taken against them by default, all the other proceedings in the action appearing to have been regularly taken. The learned circuit court held the proceedings were void, because the summons in the action was not subscribed in the handwriting of the attorney who issued the same. The statute, §§ 2629, 2630, provides that a civil action shall be commenced by the service of a summons; and, after describing what it shall contain, says: “It shall be subscribed by the plaintiff or his attorney, with the addition of his post-office address, at which papers in the action may be served on him by mail.” It is insisted by the learned counsel for the respondent, and it was so held by the circuit court, that this provision of the statute requires the summons to be subscribed by the party or his attorney in his own proper handwriting, and that if not so signed it is absolutely void.

We think the learned counsel and the court erred in giving the statute this restricted construction. The summons is not a writ or process of the court, but is simply a notice to the defendant that an action has been commenced against him, and that he is required to answer to the complaint either attached thereto or which is or will be filed in the proper clerk's office. Porter v. Vandercook, 11 Wis. 70;Rohn v. Gunnison, 12 Wis. 528;Johnson v. Hamburger, 13 Wis. 175. It is substantially the same method of commencing an action which was long practiced in the state of New York before the adoption of the Code, viz., by filing a declaration with the clerk of the court in which the action was commenced, and entering a rule requiring him to plead, and then serving upon the defendant a copy of the complaint and a notice of such rule. The summons is, in fact, a notice to the defendant that an action is commenced against him, and that he must answer the complaint within a certain time or judgment will be taken against him. The only object of requiring it to show the name of the attorney or party who commences the action, and his post-office address, is that the defendant may know upon whom and at what place he may serve his answer and other papers in the action. “That this is the object is apparent from the fact that the same section provides that the summons shall state the title of the cause, the court in which the action is brought, the county where the action is to be tried, and the names of the parties.”

These facts give the defendant all the knowledge necessary to enable him to plead to the action, except the knowledge of the person upon whom and the place where his answer and other papers must be served. This object is certainly as well accomplished when the name of the party or attorney is printed at the end of the summons as when written there, and unless the statute is imperative in requiring the signature in the handwriting of the attorney or party, there does not appear to be any reason for giving it that construction. We think the argument of the learned counsel for the respondent demonstrates that the statute does not require the written signature of the attorney or party. The authorities cited from the courts of New York, giving construction to the same provision of law in that state, are quite satisfactory, and we are disposed to follow them. Barnard v. Hedrick, 49 Barb. 62;Life Ins. Co. v. Ross, note to the case of Hunter v. Lester, 10 Abbott, Pr. Rep. 260; 1 Wait, 472; Clason v. Bailey, 14 Johns. 461; 1 Maddock, Ch. Pr. 375. This question was somewhat considered by this court in the case of Scott v. Seaver, 52 Wis. 175, 183, 184, [S. C. 8 N. W. REP. 811,] and the rule upon this subject as laid down by the New York courts was approved.

It is urged by the learned counsel for the appellant that the court should not follow the decisions of the New York courts upon this question, because subdivision 19, § 4971, Rev. St., upon the construction of statutes, is not found in the New York statutes. We are at a loss to see how this statute defining the meaning of the words “written signature of any person” in any way affects the construction of a statute that merely requires a notice to be subscribed by the party or person issuing it. It is begging the whole question to declare that the last phrase means “written signature;” and unless it does, the subdivision above referred to has no effect upon the question at issue. The meaning of this subdivision was commented upon in the case of Scott v. Seaver, supra. We there said: “Section 4971 is a section defining words or phrases used in the statutes, and that part of subdivision 19 above quoted must be...