Schmidt v. Hoffmann
| Decision Date | 24 October 1905 |
| Citation | 105 N.W. 44,126 Wis. 55 |
| Parties | SCHMIDT v. HOFFMANN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.
Action by William Schmidt against Ida Hoffmann and another. From an order denying the motion of defendant Antonina Stolowski to vacate a default judgment foreclosing a mortgage, she appeals. Affirmed.
Plaintiff sued for the foreclosure of a mortgage upon the usual complaint in such actions, demanding judgment for the amount due, foreclosure of defendants' interest in the mortgaged premises, and for personal judgment against the defendants. Proceedings were taken, which resulted in the rendering of judgment by the circuit court on the 31st day of March, 1902. It appears that plaintiff and his attorney appeared in court upon that day, and proceeded to judgment in the action, upon the ground of default by the defendants. The court proceeded in the cause, took proof of the amount due, and signed findings of fact and conclusions of law, which directed judgment to be entered for the foreclosure of the mortgage, a sale of the premises, application of the amount realized at such sale in payment of the mortgage, and, in case of a deficiency, directed a personal judgment to be entered against defendants for the amount of the deficiency. Judgment was signed by the clerk on March 31, 1902, and filed by the clerk on April 8, 1902. On January 17, 1905, the defendant Antonina Stolowski appeared specially in the action and petitioned the court to vacate and set aside the judgment entered therein upon the grounds presented, alleging that: (1) The title of the cause as set forth in the affidavit of service, filed April 8, 1902, is not the same title as is set forth in the summons and complaint; (2) the affidavit of service omits to state that the person who served the summons and complaint knew the defendant to be the same person mentioned “in the summons”; (3) the findings were signed, and judgment rendered by the court and signed by the clerk on March 31, 1902, without proof and filing of an affidavit of default; (4) the affidavit of service had not been filed when judgment was rendered by the court and signed by the clerk on March 31, 1902; (5) neither the summons nor the complaint in the action were in fact served upon the petitioner. An order to show cause why the prayer of the petitioner should not be granted was made by the court, and served on the plaintiff. Upon the hearing of such order the parties appeared and submitted proof to the court. No request having been made by either party for a reference or a trial before the court upon oral testimony of the issues raised between the parties by the order to show cause, the court by an order made and dated February 20, 1905, found and ordered, among other things: (1) That the affidavit of service filed April 8, 1902, was sufficiently certain and definite in its title to make it sufficient and valid in this respect; (2) that the statement by affiant that he knew the defendants, on whom he served, (naming them) to be the identical persons named as defendants in the action, was a substantial compliance with section 2642, Rev. St. 1898, which provides that it shall be stated in such affidavit that affiant knew the person on whom he served to be the person mentioned “in the summons”; (3) that proof of default was submitted to the court on March 31, 1902, before the rendition of judgment; (4) that the affidavit of service of summons was filed on the 8th day of April, 1902, before the entry of judgment by the clerk; (5) that the summons and complaint were, in fact, served on the defendant Antonina Stolowski, in the city and county of Milwaukee, on February 25, 1902; and the court thereupon denied the prayer of the petitioner for a vacation of the judgment. The return also shows that the court, on motion duly made and served on appellant, and after hearing the parties to the proceeding, on March 13, 1905, ordered that the original affidavit of service of the summons and complaint in the action be amended to conform to the fact, and to show that the summons and complaint were in fact served on Antonina Stolowski, one of the defendants, and for that purpose ordered the affidavit of Henry C. Rehm, which was annexed to the moving papers and showed such service of the summons and complaint, to be filed and to stand as the amended affidavit and proof of service of the summons and complaint on the defendant Antonina Stolowski. On February 25, 1905, appellant gave notice of appeal from the order dated February 20, 1905, denying her petition for the vacation of the judgment, but not until March 15, 1905, did she perfect such appeal by filing the necessary undertaking on appeal to this court from such order.Casimir Gonski, for appellant.
Froede & Bodenstab (James F. Trottman, of counsel), for respondent.
SIEBECKER, J. (after stating the facts).
Appellant contends that the order of the circuit court should be reversed, and the relief demanded in her petition for the vacation of the judgment rendered in the action should be granted, because it appears upon the face of the record that the affidavit of service relied on by the plaintiff is not entitled the same as is the summons and complaint. The discrepancy pointed out is an omission of the words contained in the summons “sole” and “formerly Skotzke.” The summons is entitled on defendants' part: “Ida Hoffmann and her sole surviving joint-tenancy grantee, Antonina Stolowski, formerly Skotzke, defendants,” while the affidavit is entitled: “Ida Hoffmann and her joint-tenancy grantee, Antonina Stolowski, defendant.” The omitted words do not refer to the name of the party defendant, but are merely words of description, which were not essential to the summons. Their omission from the title is, at most, a clerical error in the affidavit of service, of no significance. The parties are properly designated and named without their insertion. They do not add to or omit anything material and necessary in the title of the case. The title as written in the summons and the affidavit of service are substantially the same.
It is next insisted that the affidavit of service does not comply with the requirements of section 2642, Rev. St. 1898, in that it omits to state that the person who claims to have served the...
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Artman v. Artman
...691, 51 A. 1084. It is the fact of jurisdiction, not the way in which it is made to appear, which is the vital thing. Schmidt v. Stolowski, 126 Wis. 55, 61, 105 N.W. 44; In re Newman, 75 Cal. 213, 220, 16 P. 887, Am.St.Rep. 146. Should we find error in the trial court's ruling on the demurr......
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State ex rel. Delmoe v. Dist. Court of Fifth Judicial Dist.
...316, 15 P. 424, 3 Am. St. Rep. 583;Anderson v. Gray, 134 Ill. 550, 25 N. E. 843, 23 Am. St. Rep. 696;Schmidt v. Stolowski and Hoffmann, 126 Wis. 55, 105 N. W. 44. The relief awarded by the decree did not exceed that demanded by the complaint. The same argument is directed against the allega......
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Artman v. Artman
...51 A. 1084. It is the fact of jurisdiction, not the way in which it is made to appear, which is the vital thing. Schmidt v. Stolowski, 126 Wis. 55, 61, 105 N. 149 A. 248 W. 44; In re Newman, 75 Cal. 213, 220, 16 P. 887, 7 Am. St. Rep. 146. Should we find error in the trial court's ruling on......
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Zahorka v. Geith (In re Geith's Estate)
...court has recently held that it is the fact of service and not the mere proof of it that gives the court jurisdiction. Schmidt v. Stolowski, 126 Wis. 55, 105 N. W. 44. In that case it was expressly held that, “if the summons was in fact served upon defendants, the court has jurisdiction, al......