Span v. Span, 140
| Decision Date | 05 November 1971 |
| Docket Number | No. 140,140 |
| Citation | 191 N.W.2d 209,52 Wis.2d 786 |
| Parties | Johnnie SPAN, Appellant, v. John SPAN, Respondent. |
| Court | Wisconsin Supreme Court |
This appeal concerns an action for a decree of absolute divorce. The trial court found that the appellant (hereinafter referred to as plaintiff) had not used reasonable diligence in attempting to personally serve the summons and verified complaint upon the respondent (hereinafter referred to as defendant), who was without the state, as required by sec. 247.062, Stats. Judgment was thereupon entered dismissing the action for want of jurisdiction. The plaintiff appeals.
Seymour Pikofsky, Milwaukee, for appellant.
Joseph M. Syman, Family Court Commissioner, and John J. Durkin, Asst. Family Court Commissioner, Milwaukee County, Milwaukee, as Amicus Curiae in the interest of the public.
Plaintiff is a resident of Wisconsin, and defendant is alleged to be a resident of Illinois. In October of 1969, the plaintiff attempted personal service of process on defendant, pursuant to sec. 247.062(1), Stats., by mailing a copy of the summons and complaint to the sheriff of Kane county, Illinois, upon information that the defendant resided therein at 71 Summit street, Elgin, Illinois. The pleadings were returned by the sheriff with the statement, along with a worksheet noting various attempts at personal service.
Thereafter service was made by publication, pursuant to sec. 247.062(2), Stats. A copy of the summons and complaint was mailed to the defendant's last known address, the same address at which personal service had previously been attempted. After the required number of publications had been made, trial was scheduled for April 27, 1970. Plaintiff mailed a copy of the order to appear at trial to the sheriff of Kane county, Illinois, and the defendant was personally served with the order on February 16, 1970, at the same address where personal service of the summons had been attempted. April 10, 1970, a guardian ad litem was appointed for two of plaintiff's five minor children.
Defendant failed to appear for trial on April 27, 1970. The Assistant Family Court Commissioner appeared pursuant to sec. 247.15, Stats., and objected to the jurisdiction of the court. The Assistant Family Court Commissioner argued that service of process by mailing and publication, pursuant to sec. 247.062(2), was defective in that the affidavit of the plaintiff describing efforts to make personal service did not relate to attempts made outside the state. Plaintiff introduced evidence of attempts made at personal service by the sheriff of Kane county, Illinois. This evidence consisted of initialed unsworn notations on the sheriff's worksheet previously referred to.
The defendant failed to file a brief on appeal. Therefore, this court ordered the Family Court Commissioner to file a brief amicus curiae in the interest of the public, rather than reverse pursuant to W.S.A. Rule 251.57, Stats.
The only question presented on this appeal is whether service of process by mail and publication was valid, under the facts of this case, to obtain personal jurisdiction over the defendant. 1
The service of a summons in a manner prescribed by statute is a condition precedent to a valid exercise of personal jurisdiction, notwithstanding actual knowledge by the defendant. Heaston v. Austin (1970), 47 Wis.2d 67, 176 N.W.2d 309; Howard v. Preston (1966) 30 Wis.2d 663, 142 N.W.2d 178. In the instant case, service was made under sec. 247.062(2), Stats.:
'* * * When the defendant cannot with reasonable diligence be served personally within the state under s. 247.061, service may be made as follows:
'(1) Personal service without the state. By personally serving the summons and a copy of the verified complaint upon the defendant without the state and within 20 days thereafter filing the summons and verified complaint in court and serving copies of the summons and verified complaint on the family court commissioner; or
* * *'
The statute requires reasonable diligence in attempting to personally serve the defendant without the state as a sine qua non of service by mailing and publication. Beneficial Finance Co. v. Lee (1967), 37...
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...sufficient" to establish that reasonable diligence has been exercised. West, 82 Wis.2d at 167, 262 N.W.2d 87 (citing Span v. Span, 52 Wis.2d 786, 191 N.W.2d 209 (1971)). Therefore, because plaintiff has not offered adequate proof that he undertook reasonably diligent efforts to serve defend......
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