Rix v. Sprague Canning Mach. Co.

• Decision Date: 17 June 1914
• Citation: 147 N.W. 1001,157 Wis. 572
• Parties: RIX v. SPRAGUE CANNING MACHINERY CO.
• Court: Wisconsin Supreme Court

157 Wis. 572

147 N.W. 1001

RIX

v.SPRAGUE CANNING MACHINERY CO.

Supreme Court of Wisconsin.

June 17, 1914.

Appeal from Circuit Court, Washington County; Martin L. Lueck, Judge.

Action by Paul A. Rix against the Sprague Canning Machinery Company. From an order denying a motion made after a judgment of default to set aside service of summons and all proceedings subsequent thereto, defendant appeals. Reversed and remanded with directions.

The defendant, a foreign corporation, made a motion, after a judgment of default had been entered against it, to set aside the service of the summons in the action and all proceedings subsequent thereto on the ground that the service was void. From an order denying the motion, it appealed.Bloodgood, Kemper & Bloodgood, of Milwaukee (Albert K. Stebbins, of Milwaukee, of counsel), for appellant.

Sawyer & Sawyer, of Hartford, for respondent.

VINJE, J.

[1] 1. Respondent questions the appealability of the order. An order made before judgment refusing to set aside the service of a summons is not appealable. Latimer v. Central Electric Co., 101 Wis. 310, 77 N. W. 155;Welsher v. Libby, 106 Wis. 291, 82 N. W. 143. Neither can its validity be tested by a writ of error (Paine v. Chase, 14 Wis. 653), for that can be brought only on a judgment or on an award in the nature of a judgment (Wheeler v. Scott, 3 Wis. 362), and on appeal from a judgment constitutes a general appearance (Barnum v. Fitzpatrick, 11 Wis. 81;Ruthe v. Green Bay & Minnesota Railroad Co., 37 Wis. 344;Town of Washburn v. Washburn W. Co., 120 Wis. 575, 98 N. W. 539). A special appearance for the purpose of moving for a change of venue waives defective service. State ex rel. Engle v. Hilgendorf, 136 Wis. 21, 116 N. W. 848. So does a special appearance for the purpose of amending the return of service (Bestor v. Inter-County Fair, 135 Wis. 339, 115 N. W. 809), or any motion asking for partial or entire relief which is consistent only with the fact of jurisdiction and which implies it in its consideration (Blackburn v. Sweet, 38 Wis. 578). Thus a motion to set aside a judgment for defective service and for irregularities not jurisdictional is held to be a general appearance, though the motion recites the appearance is special. Grantier v. Rosecrance, 27 Wis. 488;Anderson v. Coburn, 27 Wis. 558;Alderson v. White, 32 Wis. 308. This court will not under its power of superintending control review an order made before judgment refusing to vacate the service of a summons. In re Petition of Pierce-Arrow Motor Car Co., 143 Wis. 282, 127 N. W. 998. It thus appears that a defendant who claims defective service of a summons must either stay out of court entirely after his application to the trial court to set aside the service has been denied, or else waive the right to have such question passed upon by appeal unless it can be tested by an appeal from an order made after judgment as is sought to be done in this case. The right of appeal is purely statutory. It is manifest that the order under consideration, if embraced within the provisions of section 3069, Stats., relating to appealable orders, must come under the second subdivision thereof, providing that a final order affecting a substantial right made upon a summary application in an action after judgment is appealable. While such orders usually relate to proceedings or matters taking place subsequent to the entry of the judgment, or to the granting or denying additional relief at the foot thereof, or to the taking of an appeal therefrom, no good reason is perceived for limiting them entirely thereto--especially when such construction would deprive a litigant of the right either to question the fact of jurisdiction or else to question the merits of a judgment. The language of the statute is broad enough to include the order appealed from, and every consideration having in view the protection of substantial rights of litigants favors its inclusion.

The motion in this case was in effect a summary application made after judgment to vacate it for want of jurisdiction due to defective service. True, the question raised could have been tested in the trial court before judgment, but under our statu...