Phillips v. Portage Transit Co.
| Decision Date | 01 December 1908 |
| Citation | 118 N.W. 539,137 Wis. 189 |
| Parties | PHILLIPS v. PORTAGE TRANSIT CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.
Action by Frank Phillips against the Portage Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.
This action was commenced for the recovery of damages on account of personal injuries alleged to have been sustained by plaintiff, Frank Phillips, at De Pere, Wis., on or about the 11th day of August, 1906, through the negligence of defendant. The summons was served by the sheriff of Manitowoc county upon one W. J. Cowles, captain of defendant's steamer, on the 28th day of September, 1906, at the city of Manitowoc, Manitowoc county, Wis. The complaint was not served with the summons. The defendant failed to appear, and the case was brought to trial at the 1906 general term of the circuit court for Brown county at Green Bay, Wis., before Hon. Samuel D. Hastings and a jury, and judgment rendered in favor of the plaintiff on the 3d day of December, 1906, for the sum of $2,500 damages, together with costs, taxed at $37.72, aggregating $2,537.72. On the 9th day of November, 1907, the defendant appeared specially and moved that the service of the summons, as well as the judgment, be vacated and the action dismissed, for the reason that the summons had never been served upon the defendant, and that the court acquired no jurisdiction of the action. On the 25th day of November, 1907, the motion was denied with $10 costs. On January 22, 1908, defendant served notice of the entry of the order, denying the motion of defendant to set aside the service of the summons, and refusing to vacate the judgment. On November 30, 1907, defendant appeared, and filed with the court an order to show cause why an order should not be made vacating and setting aside the judgment and opening the default, and allowing the defendant to defend, which motion was denied with $10 costs. On April 1, 1908, notice of the entry of this order was served upon plaintiff. Exceptions were filed to said orders, and defendant appealed from the judgment and both orders.Markham & Markham and A. L. Hougen, for appellant.
M. E. Davis, for respondent.
KERWIN, J. (after stating the facts as above).
1. The first claim made by counsel for appellant is that the order refusing to set aside the service of the summons was erroneous. This claim is based upon the contention that the captain was not a person within the meaning of the statute upon whom service could be made. Subdivision 13, § 2637, St. 1898, provides, in effect, that service upon a foreign corporation of a class to which the defendant belongs may be made upon any agent having charge of or conducting any business for such corporation within the state. It appears very clearly from the record that the captain of the boat was such an agent within the meaning of the statute. He was, at the time of the service, and prior thereto, conducting business of the defendant corporation within the state, therefore was an agent upon whom service could be made. Subdivision 13, § 2637, St. 1898; 20 Am. & Eng. Enc. of Law (2d Ed.) 199. The service upon the captain being good, it is unnecessary to consider the effect of a general appearance.
2. It is further insisted that the court below erred in its order refusing to set aside the judgment entered by default for several reasons, namely (1) that the service was not personal; (2) that the complaint did not state a cause of action; (3) that there was not sufficient proof to warrant the entry of judgment. The service having been made upon an agent designated by the statute as a proper person upon whom service could be made, the service was personal within the meaning of the statute authorizing entry of judgment by default. The complaint stated a good cause of action. It stated, in effect, that the plaintiff was a minor, and that the action was brought by the guardian ad litem duly appointed; that the defendant was a foreign corporation, organized under the laws of the state of Ohio, and was the owner of and engaged in operating a steam vessel known as the “Portage”; that on or about the 11th day of August, 1906, while said steamer was at the docks of the Co-Operative Coal Company in the city of De Pere, Brown county, Wis., and the defendant engaged in loading and transferring blocks of ice from the dock to the upper part of the steamer, the plaintiff, at the same time being engaged as employé of said Co-Operative Coal Company, was injured by the careless and negligent handling of ice by the defendant in such manner as to cause a large block thereof to fall upon him seriously injuring him, in consequence of which he suffered great pain and anguish of body and mind, and was permanently lamed and crippled so as to unfit him for performing manual labor, in all to his damage $5,000. Objection is made to the complaint on the ground that it fails to set forth the particular facts of negligence relied upon. Whether the complaint would have been subject to a motion to make more definite and certain we need not determine, because we are convinced that, in the absence of any objection before verdict, the allegations of negligence were sufficient. It is insisted that the complaint contained no demand for relief, and was not properly verified. Instead of closing with the usual demand for damages, it contains the phrase “in all to his damage, five thousand dollars,” and it is insisted that this is not a sufficient demand for judgment under section 2646, St. 1898, which provides that the complaint shall contain a demand of the judgment to which the plaintiff supposes himself entitled, and if the recovery of money be demanded, the amount thereof shall be stated. Section 2886, St. 1898, also provides that the relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; and section 2829 provides that the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and that no judgment shall be reversed or affected by reason of such error or defect. In the instant case the complaint was not served with the summons, and was never served upon the defendant, but was filed at or shortly before the trial. So it is very clear that the defendant could not by any possibility have been prejudiced by the defect complained of respecting the demand for judgment. It is true the demand was not in the usual and customary form, and...
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...there; and he cannot now complain if plaintiff did an unnecessary thing imperfectly. [School District v. Shuck, 49 Colo. 526; Phillips v. Transit Co., 137 Wis. 189.] cites many cases which hold, in effect, that the failure to file any pleading which is necessary to form an issue is deemed w......
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