Pavalon v. Thomas Holmes Corp.

• Decision Date: 24 November 1964
• Citation: 25 Wis.2d 540,131 N.W.2d 331
• Parties: Wesley D. PAVALON, an individual, Plaintiff-Respondent, v. The THOMAS HOLMES CORPORATION, a New York Corporation, Defendant-Appellant, Seymour Fishman, an individual, and Golkin & Bomback, Inc., a New York Corporation, Defendants.
• Court: Wisconsin Supreme Court

Page 331

131 N.W.2d 331

25 Wis.2d 540

Wesley D. PAVALON, an individual, Plaintiff-Respondent, v. The THOMAS HOLMES CORPORATION, a New York Corporation,

Defendant-Appellant,

Seymour Fishman, an individual, and Golkin & Bomback, Inc.,

a New York Corporation, Defendants.

Supreme Court of Wisconsin.

Nov. 24, 1964.

James F. Stern, Milwaukee, for defendant-appellant.

Godfrey & Kahn, Milwaukee, for plaintiff-respondent; David M. Hecht, Milwaukee, of counsel.

CURRIE, Chief Justice.

We consider that the instant appeal presents four issues:

(1) Can the claimed lack of jurisdiction over the person of appellant Sulray be raised by demurrer, and, if not, what is the proper procedure for raising and disposing of such question of personal jurisdiction?

(2) Did the circuit court have jurisdiction over the subject matter of the causes of action attempted to be pleaded in the complaint?

(3) Does the pleaded first cause of action set forth sufficient facts to constitute a cause of action?

(4) Is that part of the order appealable which granted leave to plaintiff to plead over his second cause of action?

PERSONAL JURISDICTION.

Appellant contends its demurrer to the first cause of action should have been sustained on the ground of lack of personal jurisdiction. It is appellant's position that since allegations of the complaint are insufficient to show the necessary minimal contacts between appellant and Wisconsin the circuit court did not obtain personal jurisdiction over appellant by service of the summons and complaint upon it outside of the state.

There are two fatal defects to appellant's position. First there is no requirement that a complaint must state the facts necessary to give the court personal jurisdiction over the defendant if service of the summons is made upon defendant otherwise than by personal service within the state. We recognize that this holding may at first blush seem inconsistent with our opinion in Flambeau Plastics Corp. v. King Bee Mfg. Co. (1964), 24 Wis.2d 459, 129 N.W.2d 237, where we looked to allegations of the complaint to determine an issue of personal jurisdiction. We are now satisfied, however, that a court cannot base a determination of lack of personal jurisdiction over a defendant upon a mere failure of the complaint to allege facts necessary to establish personal jurisdiction.

Secondly, demurrer on the ground of lack of personal jurisdiction over appellant will not lie under the facts of this case. This is because the face of the complaint does not show whether service was had upon appellant within or without the state. It is necessary to look to the affidavit of service to ascertain this fact. Demurrer can only be used to raise the issue of lack of personal jurisdiction 'when the defect appears on the face of the complaint.' Sec. 262.16(2)(b), Stats. Without giving due consideration to this statutory provision, we wrongly assumed in the Flambeau Plastics Corp. Case; State ex rel. Sonneborn v. Sylvester, 25 Wis.2d 177, 130 N.W.2d 569; and in Travelers Insurance Co. v. George McArthur & Sons (1964), 25 Wis.2d 197, 130 N.W.2d 852, that a demurrer would lie to test lack of personal jurisdiction under the facts of those cases. The last cited case, however, did not raise the point here decided because the facts with respect to jurisdiction were stipulated. Thus it was wholly immaterial that the issue had originally been raised by demurrer.

It is extremely difficult to visualize a situation in actual practice when a lack of personal jurisdiction will ever appear from the face of the complaint. There are two reasons for this: the complaint does not ordinarily disclose how the summons was served; there is always a possibility that the objecting defendant may have had contacts in Wisconsin not alleged in the complaint which would authorize service of the summons to have taken place outside the state.

Inasmuch as demurrer will not here lie to raise the issue of lack of personal jurisdiction we turn to subparagraphs (a) and (c) of sec. 262.16(2), Stats., in an attempt to find out how appellant should have proceeded. These subparagraphs provide:

'(a) By motion when a defect is claimed in the service of the summons without a complaint; or when the defect appears upon the face of the record other than the complaint; or in the case of a judgment on cognovit or by default;

'* * *

'(c) By answer in all other cases.'

If only the above quoted statutory provisions are considered it would appear that appellant would be required to have raised this issue by answer. However, defendant deemed it advisable to demur to the complaint also because of its failure to state facts sufficient to constitute a cause of action. An answer must follow disposition of the demurrer. If appellant were to wait until after disposition of the demurrer to raise the defense of lack of personal jurisdiction by answer it would have waived its right to do so since a demurrer on the ground of failure to state a cause of action constitutes a general appearance. Coffee v. Chippewa Falls (1874), 36 Wis. 121, 125; 2 Callaghan's Wisconsin Pleading and Practice, p. 231, sec. 16.04. See also Brooks v. Northey (1880), 48 Wis. 455, 457, 4 N.W. 589. However, the history of sec. 262.16(2) convinces us that it was never intended that a defendant be denied the right to interpose a general demurrer to the sufficiency of the complaint when he desired also to raise the issue of lack of personal jurisdiction.

Prior to this court's action, in exercising its rule making power to create sub. (2) of sec. 262.17, Stats., effective September 1, 1956, a defendant who joined any defense or motion, which standing alone would constitute a general appearance with an objection to lack of personal jurisdiction, was deemed to have waived the latter objection. The injustice resulting from such rule was highlighted by Ozaukee Finance Co. v. Cedarburg Lime Co. (1954), 268 Wis. 20, 66 N.W.2d 686. The wording of sec. 262.17(2) as so promulgated was identical with that of present sec. 262.16(2), Stats. See 271 Wis. vii. ¹ The action of this court in creating this rule of practice was upon the recommendation of the Judicial Council. See 30 W.S.A., p. 294, Interpretative Commentary to sec. 262.17. The key provision was the first sentence which reads:

'An objection to the court's jurisdiction over the person of a defendant is not waived because it is joined with other defenses or motions which, without such objection to jurisdiction, would...