Miller v. Smith
| Decision Date | 03 March 1981 |
| Docket Number | No. 80-264,80-264 |
| Citation | 302 N.W.2d 468,100 Wis.2d 609 |
| Parties | Linda MILLER, Petitioner-Respondent, v. Charles P. SMITH, State Treasurer, Appellant. |
| Court | Wisconsin Supreme Court |
Charles A. Bleck, Asst. Atty. Gen., argued, for appellant; Bronson C. La Follette, Atty. Gen., on brief.
Louise A. Ptacek, Milwaukee, argued, for respondent; Petrie, Stocking, Meixner & Zeisig, S. C., Milwaukee, on brief.
This is a review of a writ of mandamus issued by the HON. WILLIAM F. EICH in the circuit court for Dane County directing the state treasurer to pay a default judgment entered against John Doe, an unknown employee of the state, in the Milwaukee County Circuit Court. The court denied the treasurer, Smith's, motion to dismiss the respondent, Miller's, petition for the writ (quash the alternative writ) and issued a peremptory writ of mandamus. The issuance of the peremptory writ forms the basis for this appeal and the case is before this court on certification.
On August 19, 1974, Linda Miller, respondent herein, was allegedly injured by an usher at the Wisconsin State Fair Park in Milwaukee County. She filed a claim against the state of Wisconsin which was subsequently denied. The respondent then commenced an in personam action against John Doe, an unknown employee of the state of Wisconsin, 1 pursuant to sec. 895.45, Stats., (1977) 2 alleging that he, while acting within the scope of his employment as an usher at the State Fair Park, negligently injured her wrist, head and permanently damaged her hearing. Miller alleged that service upon John Doe was accomplished with the delivery of a copy of the summons and complaint to the attorney general's office, pursuant to sec. 801.11(3). 3 Later, as recited in her petition for the writ, Miller mailed the attorney general "proof of service upon John Doe (the unknown state employee), notice of all proceedings, and notice of entry of the judgment...."
The attorney general declined to appear and defend the action against "John Doe" before the Hon. Ralph G. Gorenstein, presiding in the circuit court for Milwaukee County, who rendered a default judgment in Miller's favor ordering that she "have judgment against the defendant, John Doe, an unknown employee of the State of Wisconsin, in the sum of $7,500, together with the costs and disbursements of this action." The court in its order for judgment made the following findings: (1) the defendant's true name and address are unknown; (2) the court acquired personal jurisdiction over "John Doe;" (3) the injuries sustained by Miller at the concert at State Fair Park were the result of the sole negligence of "John Doe;" and (4) that "John Doe" was an usher employed by the State of Wisconsin and acting within the scope of his employment at the time he caused the injuries to the person of Linda Miller. To this date, the defendant (alias John Doe) remains unknown and thus has never been served with a copy of the summons and complaint and/or judgment.
Following the entry of the default judgment, Miller requested payment from the State Treasurer, Charles Smith. The request was denied and Miller, relying on sec. 801.50(9), Stats., 4 filed the petition for a writ of mandamus in the Dane County circuit court claiming that the state treasurer was obligated to pay the judgment under the provisions of sec. 895.46(1), Stats., (1977). 5 Miller supported her petition with a recitation of the default judgment and the above noted findings of the Milwaukee County circuit court. The Dane County circuit court thereupon ordered the issuance of an alternative writ of mandamus, and the state on behalf of the treasurer moved to dismiss (quash) Miller's petition on the grounds that the court lacked jurisdiction over the state treasurer under the doctrine of sovereign immunity, 6 and further, the petition failed to state a claim upon which relief may be granted. The court denied the state's motion to dismiss Miller's petition (quash the alternative writ) and ordered the issuance of a peremptory writ of mandamus directing the state treasurer to pay the default judgment. Upon the issuance of the writ of mandamus, the state appealed. The court of appeals certified the action to this court and we limit our discussion to the dispositive issue of whether a writ of mandamus will lie to compel the state treasurer to pay a default judgment against John Doe, an unknown state employee whose name and address have never been ascertained and thus never served with a summons and complaint as required under secs. 801.04(2), 7 and 801.11(1), 8 Stats.
The question presented in this case gives rise to the following inquiry: Was the default judgment rendered against an unknown state employee valid? An analysis of the fictitious name statute, sec. 807.12, Stats., as well as the statutes and case law governing personal jurisdiction in in personam actions, leads us to conclude that this inquiry must be answered in the negative.
Miller brought her personal injury suit in the Milwaukee County circuit court with the filing of a summons and complaint designating the defendant as one "John Doe, an unknown employee of the state of Wisconsin." Under sec. 807.12(1), Stats., a plaintiff may institute a cause of action against a defendant with a fictitious name if the true name of the defendant is unknown:
"When the name or a part of the name of any defendant ... is unknown to the plaintiff, such defendant may be designated a defendant by so much of the name as is known, or by a fictitious name, ... adding such description as may reasonably indicate the person intended...." (emphasis supplied).
However, under the same statutory provision which allows one to bring suit using a fictitious name, the legislature has mandated the following:
"When the name of such defendant is ascertained the process, pleadings and all proceedings may be amended by an order directing the insertion of the true name instead of the designation employed." (emphasis supplied). Sec. 807.12(2), Stats.
The operative words in sec. 807.12(2), Stats., are "when" and "may." The use of the word "when" rather than "if" contemplates knowledge of the defendant's name prior to the rendition of a judgment. By implication, it forecloses pursuit of a judgment against a nondesignated defendant where his true identity is never ascertained. Further, although sec. 807.12(2), with the use of the word "may", appears to give the court discretion to amend the process, pleadings, etc., when the true name of the defendant is ascertained, we believe that the word "may" in the statute should be read as "shall," thereby making the amendment inserting the defendant's true name before or at the time of entry of judgment mandatory. The applicable rule of statutory construction is stated in Schmidt v. Local Affairs & Development Dept., 39 Wis.2d 46, 53, 158 N.W.2d 306 (1968):
See also: Hitchcock v. Hitchcock, 78 Wis.2d 214, 220, 254 N.W.2d 230 (1977).
In the statute under consideration, the legislature, with the use of the word "when," contemplated that the defendant's identity would become known at some time during the proceedings. Thus, the legislature also intended that "when" the defendant's identity is ascertained, the process, etc., must be amended to reflect the defendant's true name before or at the time of entry of judgment, for if it were otherwise, it would be possible to enter and maintain a default judgment against an unknown person ad infinitum. (See: sec. 806.02(2), Stats., stating the judgment is to be according to the demand of the complaint.) However, a judgment must recite the name of the defendant party as the legislature provided in sec. 806.01(1), Stats.:
Thus, when sec. 807.12, Stats., is read in conjunction with sec. 806.01(1), Stats., as required when dealing with judgments, it becomes apparent that the legislature, with the enactment of sec. 807.12, did not intend to authorize the rendition and entry of a judgment against an unnamed (unknown) party and further, that when the defendant's true name is ascertained, the process, etc., must be amended before or at the time of entry of judgment. A reading of this statute reveals that its practical import is only to provide a method to initiate an action within the statute of limitations 9 when the defendant's name is unknown no more, no less. 10
Thus, on the basis of the foregoing reasoning, we hold that sec. 807.12, Stats., fails to authorize the rendition and entry of a judgment against an unnamed individual (alleged state employee). Next, we turn to the more important issue of whether or not the Milwaukee County circuit court ever acquired personal jurisdiction over the unknown state employee, "John Doe," for, it is self-evident that an in personam judgment in the absence of personal jurisdiction is void. 11
The state argues that the Milwaukee County circuit court did not have personal jurisdiction over an unknown state employee because no employee was given notice of a pending suit in the manner prescribed in sec. 801.11(1), Stats. Miller, on the other hand, claims that the circuit court for Milwaukee County obtained personal jurisdiction over the unknown state employee with the delivery of a copy of the summons and complaint to the attorney general's office. She contends that service upon the attorney general pursuant to sec. 801.11(3) was a...
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