Rehmstedt v. Briscoe

• Decision Date: 31 October 1882
• Citation: 55 Wis. 616,13 N.W. 687
• Parties: REHMSTEDT v. BRISCOE.
• Court: Wisconsin Supreme Court

55 Wis. 616

13 N.W. 687

REHMSTEDT

v.BRISCOE.

Supreme Court of Wisconsin.

Filed October 31, 1882.

Appeal from circuit court, Grant county.

A. W. Bell, for respondent.

Bushnell, Clark & Watkins, for appellant.

TAYLOR, J.

This is an appeal from a final judgment entered in favor of the plaintiff against the defendant upon default. The defendant did not appear or answer in the court below, and the attorneys who appear for him on this appeal expressly state in their notice of retainer to the plaintiff and respondent that they appear solely for the purpose of appealing from the judgment. The only ground relied upon for the reversal of the judgment is that the record does not show that the court had jurisdiction of the person of the defendant and appellant. The proof of the service of the summons found in the record is as follows:

“ State of Wisconsin, County of Grant--ss.:

I hereby certify and return that I did, on the second day of February, 1878, serve the within summons and complaint on the within-named defendant, Richard Briscoe, by delivering to and leaving with his wife, Maria Briscoe, a person of suitable age and discretion, to whom I informed the nature and contents thereof, and who was also at the residence of said defendant, Richard Briscoe, in said county.

MATT. BIRCHARD, Sheriff.

By J. L. RENEY, Deputy Sheriff.”

It is clear that this proof of service of the summons was not sufficient to give the court jurisdiction of the person of the defendant, and, in the absence of an appearance in fact by the defendant, a judgment entered by the court against him is erroneous, and must be reversed. Matteson v. Smith, 37 Wis. 333;Knox v. Miller, 18 Wis. 397;Rape v. Heaton, 9 Wis. 328;Pollard v. Wegener, 13 Wis. 569-575;Northrup v. Shephard, 23 Wis. 513;Mecklem v. Blake, 19 Wis. 397;Weatherbee v. Weatherbee, 20 Wis. 499;Sayles v. Davis, 20 Wis. 302;Hall v. Graham, 49 Wis. 553; [S. C. 5 N. W. REP. 943.] It is unnecessary to cite other authorities to this point, as it is admitted by the learned counsel for the respordent that upon the face of the record a want of jurisdiction over the person of the defendant clearly appears. But they now propose to cure the defects by an amendment of the record in this court by having the officer who served the summons and complaint amend his return according to the facts, so as to show a legal service, or to have the record remittedto the circuit court for the purpose of having the officer make an amended return there, in order to cure the defects; and for that purpose, when the cause was called for argument in this court, they presented an affidavit of the officer who made the service, showing that he did in fact make a legal service of the summons and complaint upon the defendant, and a willingness on his part to make an amended return showing such legal service.

Although we have no doubt as to the power of this court to permit the withdrawal of the record, to allow the officer to amend his return in the court below in accordance with the facts showing a legal service, and thereby cure the error in the record, and although we have very little doubt as to our power to permit the officer to amend his return in this court so as to cure such defect, we are of opinion that we ought not to permit either in this case. When the appellant brought his appeal, the record showed a clear and palpable error, for which the judgment rendered against him would be reversed, unless the error be cured by the amendment now sought to be made. There is nothing in the case which shows that the appellant...