Rollins v. Maxwell Bros. Co.

• Decision Date: 30 January 1906
• Citation: 127 Wis. 142,106 N.W. 677
• Parties: ROLLINS v. MAXWELL BROS. CO.
• Court: Wisconsin Supreme Court

127 Wis. 142

106 N.W. 677

ROLLINS

v.MAXWELL BROS. CO.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Price County; John K. Parish, Judge.

Action by E. T. Rollins against the Maxwell Bros. Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought to recover $832.87, the alleged balance due on account of goods, wares, and merchandise sold and delivered by the plaintiff to the defendant (a corporation organized and existing under and by virtue of the laws of Illinois), at its instance and request, between December 17, 1902, and May 24, 1904. The complaint alleged a demand of payment and refusal to pay, and the same was duly verified October 12, 1904, and with the summons attached was filed in the clerk's office October 13, 1904. On that same day there was filed in that office the writ of attachment and the affidavit and undertaking for the same, and the sheriff's return to the effect of having attached the defendant's real estate described, on that day, and the sheriff further returned that after diligent search and inquiry he was unable to find the defendant or any agent thereof on whom to make service of such writ, affidavit, and undertaking, and further that he was informed and believed that the defendant was a foreign corporation, having its principal office in Chicago, and had no agent within this state on whom such service could be made. October 14, 1904, one Nelson, an acting constable, made an affidavit to the effect that the summons and complaint had been delivered to him for service on the defendant; that after diligent search he was unable to find the defendant within the state, or any agent thereof on whom service could be made; and that the defendant had its principal office in Chicago and received its mail at Hinman and Laflin streets, Chicago. The plaintiff made his affidavit October 17, 1904, to the effect that the summons (a copy of which was attached) had been issued; that the plaintiff's complaint was duly verified and on file with the clerk of the court; that a cause of action existed in favor of the plaintiff and against the defendant; that the defendant was a foreign corporation having property within the state; that the cause of action arose therein; that the court had jurisdiction of the subject of the action, which was to recover the value of goods, wares, and merchandise, as stated; that the defendant's real estate had been attached; that the plaintiff was well acquainted with the defendant, which was a foreign corporation having its principal office in Chicago, and received its mail at the streets named; and that such affidavit was made for the purpose of obtaining an order of publication for the service of the summons on the defendant. Upon the summons and complaint and the record in the action and the said affidavits of Nelson and the plaintiff, an order was obtained from a circuit court commissioner, October 17, 1904, for the service of the summons, thereto annexed, upon the defendant by publication thereof in a weekly newspaper therein named, once in each week for six weeks successively as therein mentioned, and that copies of the summons and complaint be sent to the defendant by mail as therein directed, or at the plaintiff's option copies thereof be delivered to the defendant personally without the state, which, when done, should have the same effect as a completed publication and mailing. October 26, 1904, an affidavit was made by one Higgins, a resident of Chicago, to the effect that on October 24, 1904, at Chicago he personally served the summons and complaint in said action and thereto annexed on the defendant, a corporation, by then and there delivering to H. B. Maxwell, the vice president and treasurer thereof, and leaving with him, true copies thereof, and that he knew the said Maxwell so served to be such vice president and treasurer of such corporation mentioned and described therein; that such affidavits of Nelson and the plaintiff and such order of publication and affidavit of Higgins were not filed in court until November 28, 1904. November 11, 1904, the defendant's attorneys appeared specially and gave notice to the plaintiff's attorney that upon all the records, files, and papers mentioned, and upon the affidavit of one of the defendant's attorneys, stating some of the facts mentioned, and, among other things, that as early as October 23, 1903, the defendant as such foreign corporation fully complied with all the requirements of section 1770b of the Revised Statutes of 1898, the court would be moved November 28, 1904, for an order setting aside and vacating such writ of attachment and service thereof and the service of summons and complaint and that the action be dismissed for want of jurisdiction. Upon the hearing of that motion the same was denied by the court November 30, 1904. Upon an affidavit of the plaintiff's attorney of the defendant's default, and that the defendant had not appeared in the cause except specially for such motion which was denied as stated, the court on December 12, 1904, ordered that the said cause and all issues of law and fact therein be referred to the reporter of the court to hear, try, and determine, and report according to law and the...