Sacotte v. Ideal-Werk Krug & Priester Machinen-Fabrik

• Decision Date: 21 December 1984
• Docket Number: IDEAL-WERK,MACHINEN-FABRIK,No. 83-1135,83-1135
• Citation: 121 Wis.2d 401,359 N.W.2d 393
• Parties: Shirley SACOTTE, Henry Sacotte, Jr., and Aetna Casualty & Surety Company, a foreign corporation, Plaintiffs-Respondents-Petitioners, v.KRUG & PRIESTER, a foreign corporation, Defendant-Appellant, Michael Business Machines Corporation, a foreign corporation; National Union Fire Insurance Company of Pittsburgh, Pa., a foreign corporation; Business Machines & Equipment Company, a foreign corporation; and Michigan Mutual Insurance Company, a foreign corporation, Defendants.
• Court: Wisconsin Supreme Court

Page 393

359 N.W.2d 393

121 Wis.2d 401

Shirley SACOTTE, Henry Sacotte, Jr., and Aetna Casualty & Surety Company, a foreign corporation Plaintiffs-Respondents-Petitioners, v. IDEAL-WERK KRUG & PRIESTER MACHINEN-FABRIK, a foreign corporation, Defendant-Appellant Michael Business Machines Corporation, a foreign corporation; National Union Fire Insurance Company of Pittsburgh, Pa., a foreign corporation; Business Machines &amp Equipment Company, a foreign corporation; and Michigan Mutual Insurance Company, a foreign corporation, Defendants.

No. 83-1135.

Supreme Court of Wisconsin.

Argued Nov. 26, 1984.

Decided Dec. 21, 1984.

Frederick K. Geissler, Ironwood, Mich. (argued), for plaintiffs-respondents-petitioners; Frederick K. Geissler and Weis, Geissler & Dean, P.C., Ironwood, Mich., on briefs.

William C. Griesbach, Green Bay (argued), for defendant-appellant; William C. Griesbach and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on briefs.

CECI, Justice.

This is a review of a decision of the court of appeals, ¹ reversing an order of the circuit court for Marinette county, William M. Donovan, Circuit Judge, and remanding the matter for further action. We affirm the decision of the court of appeals.

The facts in this case are succinctly set out by the court of appeals as follows:

"Shirley Sacotte injured her fingers while using a paper cutter manufactured by Ideal-Werk. Ideal-Werk originally sold the cutter to Michael Business Machines Corporation, Ideal-Werk's exclusive U.S. distributor. The cutter was eventually resold to Shirley's employer. The Sacottes personally served Michael and made five unsuccessful attempts to personally serve Ideal-Werk's U.S. counsel, Lawrence S. Lawrence. A copy of the summons and complaint was also sent by registered mail to Ideal-Werk's office in Balingen, West Germany. Lawrence then spoke with the Sacottes' attorney and confirmed by letter their agreement to extend the time for Ideal-Werk to 'answer or otherwise move with respect to the complaint.' " Sacotte, 119 Wis.2d at 16, 349 N.W.2d 701.

Ideal-Werk moved to dismiss the complaint for insufficient service of process and lack of personal jurisdiction. The trial court agreed with Ideal-Werk that service by registered mail on a foreign corporation is not sufficient to confer personal jurisdiction under Wisconsin Statutes, but held that Attorney Lawrence's letter constituted a waiver of Ideal-Werk's jurisdiction defense. The trial court found Ideal-Werk to be "... an active participant in the case." As such, the court found it unnecessary to hold a hearing to determine if proper service had been effected through a different method.

The court of appeals concurred with the trial court's finding that Sacottes' service of Ideal-Werk by registered mail did not confer personal jurisdiction, but disagreed with the court's conclusion that Ideal-Werk waived its jurisdictional defense. The court then discussed the issue of whether proper service was obtained by some other method. The court of appeals rejected Sacottes' contention that, as an agent for Ideal-Werk, Attorney Lawrence's avoidance of service estops Ideal-Werk from raising the jurisdiction defense, and then remanded the case for a hearing to determine whether Michael Business Machines Corporation, which was properly served, was either Ideal-Werk's managing agent or an agent authorized by appointment or by law to accept service for Ideal-Werk. ²

Subsequently, the plaintiffs petitioned this court to review that portion of the court of appeals decision which held that service of a summons and complaint on a West German corporation by registered mail was insufficient to confer personal jurisdiction. We granted the petition by an order dated July 24, 1984.

I.

In order for a Wisconsin court to exercise personal jurisdiction over a defendant, service of the summons and complaint must be made in the manner provided in section 801.11, Stats. ³ Section 801.11(5), sets forth three methods by which service can be made upon domestic or foreign corporations:

"(a) By personally serving the summons upon an officer, director or managing agent of the corporation either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.

"(b) If with reasonable diligence the defendant cannot be served under par. (a), then the summons may be served upon an officer, director or managing agent of the corporation by publication and mailing as provided in sub. (1).

"(c) By serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant."

The issue here is whether a foreign corporation can be personally served by receiving registered mail. This is a question of statutory construction, which is a question of law. State v. Clausen, 105 Wis.2d 231, 243, 313 N.W.2d 819 (1982). "As to questions of law, an appellate court need not give special deference to determinations of the trial court." DePratt v. West Bend Mut. Ins. Co., 113 Wis.2d 306, 310, 334 N.W.2d 883 (1983).

The rules of statutory construction are well established. "First and foremost among them is the rule that the purpose of engaging in statutory interpretation is to ascertain and give effect to the intent of the legislature." Green Bay Redevelopment Authority v. Bee Frank, 120 Wis.2d 402, 409, 355 N.W.2d 240 (1984), citing with approval Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537-38, 345 N.W.2d 389 (1984).

"In determining legislative intent, first resort is to the language of the statute itself. If the meaning of the statute is clear on its face, this court will not look outside the statute in applying it. Wis. Elec. Power Co. v. Public Service Comm., 110 Wis.2d 530, 534, 329 N.W.2d 178 (1983)." In Interest of P.A.K., 119 Wis.2d 871, 878, 350 N.W.2d 677 (1984).

"When the language of a statute is ambiguous or unclear, this court will examine the scope, history, context, subject matter and object of the statute in order to discern the intent of the legislature.... One further principle which must direct the court in construing a statute is that the court must interpret it in such a way as to avoid an absurd or unreasonable result." Green Bay Redevelopment Authority, 120 Wis.2d at 409, 355 N.W.2d 240 (citations omitted).

We first look to the language of section 801.11(5), Stats., and find that the meaning of the statute is clear. Our legislature has specifically excluded service by mail as a means of personal service. Section 801.11(5)(b), provides that, if with reasonable diligence the defendant cannot be personally served, service can be made by publication and mailing. We hold that our legislature did not intend to include service by mail as a method of personal service.

The plaintiff distinguishes between mail as we ordinarily know it and registered mail and asserts that in cases where registered mail is used, it is possible for the mail carrier to personally serve a defendant by directly delivering the summons and complaint to him. ⁴ Wisconsin statutes do not draw this line of demarcation. Registered mail is customarily treated as general mail in this state. If a distinction is to be drawn between the two, appropriate action should be taken by the legislature and not by this court.

Section 801.11(5)(b), Stats., does allow service upon a defendant by mail if the party attempting service has with reasonable diligence attempted and failed to personally serve the defendant and if the mailing is accompanied by publication. It is apparent that these prerequisites were not satisfied in this case.

A second argument asserted by the Sacottes is that service of process by mail is authorized by section 801.11(5)(c), Stats., when read in conjunction with section 801.14(2). ⁵ Section 801.11(5)(c), allows for service of a summons upon a domestic or foreign corporation as follows:

"By serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant." (Emphasis added.)

Section 801.14(2), Stats., mandates that service of pleadings and other papers be made upon a party by serving that party's attorney unless service upon the party in person is ordered by the court. Service upon an attorney or upon a party includes both delivery of a copy by handing it to the attorney or to the party or by mailing a copy to the last-known address of the attorney or the party.

We reject the plaintiffs' contention that section 801.14(2), Stats., allows service of a summons on a foreign corporation by mail. Section 801.14(2), is applicable only after the action has been commenced and an attorney has appeared in the action on behalf of a party. In Matter of Petition of Elec. Power Co., 110 Wis.2d 649, 657, 329 N.W.2d 186 (1983).

II.

For the first time in its brief submitted to this court, Ideal-Werk raised the issue of whether service of process in this case was sufficient under the Hague Convention. ⁶ We are unable at this point to...