Punke v. Brody

Decision Date05 June 1962
Citation115 N.W.2d 601,17 Wis.2d 9
PartiesHelen PUNKE, Plaintiff-Respondent, v. Harry BRODY, Appellant, Nathan Altman, Defendant-Respondent.
CourtWisconsin Supreme Court

Plaintiff claims that she was injured June 12, 1953, when she slipped on the front steps of a building located in Milwaukee and owned by Harry Brody.

Plaintiff attempted to bring this action for damages against Brody. Service of summons and complaint was attempted June 11, 1955, in Milwaukee, by delivery of copies to 'Nathan Altman, Agent for Harry Brody.' Counsel appeared specially for Brody, objecting to the court's jurisdiction over him. Later, after sec. 262.17, Stats.1957, became effective, Brody answered, alleging that personal service had not been made upon him and that Altman was not authorized to accept service. He sought dismissal for want of jurisdiction.

After trial of the issue as to jurisdiction, the circuit court found that Brody was a resident of California at all material dates; that he owns several income-producing real properties in Milwaukee, which were maintained, managed and supervised by Nathan Altman; that Altman has commenced several court actions on behalf of Brody as his agent, and verified pleadings therein; that Altman told the process server that he was Brody's agent and was authorized to accept service on Brody's behalf.

The circuit court concluded that the delivery of these papers to Altman was valid service on Brody. On November 2, 1961, an order (entitled 'judgment') was entered accordingly. Defendant Brody appealed. Altman is now also named as a defendant in the action, but the order appealed from did not involve his status.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Kurt Frauen and Phillip E. Crump, Milwaukee, of counsel, for appellant.

Earl J. Kuehl, Milwaukee, Janice M. Rosenak, Milwaukee, of counsel, for respondent.

FAIRCHILD, Justice.

1. Delivery of summons to an agent. The statutes applicable to this question were those in force June 11, 1955. Sec. 262.08(3), Stats.1953, provided:

'Personal service on individuals and its equivalent. For personal service or its equivalent, the summons, and the accompanying complaint or notice aforesaid, if any, shall be served by delivering a copy thereof as follows:

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'(3) In all other cases by delivering within the state a copy thereof to the defendant personally; or, if not found, by leaving within the state a copy thereof at his usual place of abode in the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof.' (Emphasis supplied.)

We have no doubt that the italicized words in sec. 262.08(3), Stats.1953, mean that there must be a direct and actual delivery of the papers to the defendant himself by the one making service. If there were any question whether the word 'personally' referred only to the manner of delivery, and whether delivery by the one making service to an agent of defendant would fulfill the italicized words of the statute, such question would be answered by the clear implication of sec. 262.16(2), Stats.1955, specifying the facts which must be stated in proof of service by one who is not a sheriff or constable. That subsection provided:

'If by any other person, his affidavit thereof showing place, time and manner of service, that he knew the person served to be the defendant mentioned in the summons and left with, as well as delivered to, him a copy; and if the defendant was not personally served he shall state in such affidavit when, where and with whom such copy was left.'

It seems clear that the only delivery to one who is not the defendant which fulfills the statute occurs when the papers are left at defendant's usual place of abode in the presence of a competent member of the family at least 14 years old. A comment of the Judicial Council printed at the end of sec. 262.08, Stats.1955, indicates that that body was of the same mind.

A number of decisions cited in 32 Words and Phrases, p. 557 ff., under 'Personal Service' support the general rule that 'personal service' means actual delivery to the defendant in person.

This court made a different interpretation of similar language in a statute imposing the duty on a notary public to give notice of protest of a bill of exchange or note

'and also personally to serve the notice upon the person or persons protested against, provided he or they reside within two miles of the residence of such notary public; but if such person or persons reside more than two miles from such residence, the said notice may be forwarded by mail or other safe conveyance.' 1

The notary had called at the home of an indorser and left the notice with the indorser's son. The court decided that this fulfilled the statute. It is apparent that the court was persuaded by considerations it deemed of importance in the field of bills and notes. The opinion contains the following:

'It must also be conceded that the phrase 'personal service' is one frequently occurring in the law, and that in its strictest sense, it implies an actual delivery of the notice to be served to the person for whom it is intended. But conceding all this, we still think it was not used in that sense in the statute.'

It may be that a state's assertion of personal jurisdiction over a nonresident by service on an agent who supervises the local activity out of which the cause of action arose would transgress no constitutional limitations. The statute did not so provide, however, and when a statute prescribes how service is to be made, the statute determines the matter even though a different method might properly have been prescribed. 2

2. Consent. Plaintiff's contention that service on Altman was sufficient because of authority conferred by Brody is essentially a claim that Brody consented to the exercise of jurisdiction by Wisconsin courts.

'A state can exercise through its courts jurisdiction over an individual who consents to such exercise of jurisdiction.' 3

'Comment:

'a. The consent here considered as a basis of jurisdiction is actual assent to the exercise of jurisdiction. It may be expressed in words or shown by conduct.

'b. Consent may be given with respect to a particular action either after the action has been brought or before the action has been brought; or it may be given generally with respect to actions which may thereafter be brought.

'Illustrations:

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'5. A appoints an agent in state X and authorizes him to receive service of process in any action brought against A in a court of X. B brings an action against A in a court of X and process is served upon the agent. The court has jurisdiction over A.' 4

There is no question but that Altman was Brody's agent in Wisconsin for some purposes. Had Brody authorized him to receive service of summons in any action brought against Brody in Wisconsin, the court would have jurisdiction, based on consent. 5 Our present statute, although inapplicable to this case, expressly authorizes service upon an agent authorized by appointment to accept service of summons for the defendant. 6

The circuit court made no finding that as a matter of fact Brody authorized Altman to accept service for Brody. The process server testified (over objection) that Altman told the process server he had such authority. Altman denied saying this. The court believed the process server and made a finding that Altman did say it.

The objection should have been sustained. An agent's authority may not be shown by testimony describing his declarations to third persons. 7

The proof of Altman's activities on behalf of Brody in the management of his property, though undisputed, would not support a finding that Brody had...

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