State ex rel. Milwaukee Elec. R. & Light Co. v. Circuit Court of Rock Cnty.
| Decision Date | 05 November 1907 |
| Court | Wisconsin Supreme Court |
| Parties | STATE EX REL. MILWAUKEE ELECTRIC R. & LIGHT CO. v. CIRCUIT COURT OF ROCK COUNTY. |
OPINION TEXT STARTS HERE
Mandamus by the state, on relation of the Milwaukee Electric Railroad & Light Company, against the circuit court of Rock county. Writ denied.
This is an action of mandamus brought in this court to compel the defendant court to dismiss an action brought therein, because the summons had never been served. An alternative writ was issued, return was made thereto, and an answer to the return was filed. The case was heard upon the pleadings, from which it appeared that the action sought to be dismissed was an action by one Winifred Fifield against the relator and the Chicago, Milwaukee & St. Paul Railway Company for personal injuries alleged to have been caused by the negligence of both defendants; that on the 15th day of February, 1907, the sheriff of Milwaukee county attempted to make service of the summons and complaint upon the relator by delivering copies thereof to one Boehm, who was supposed by the officer to be the secretary of the relator; that on the 7th day of March following, the relator appeared specially and served notice of a motion to set aside the supposed service of the summons upon it and dismiss the action on affidavits tending to show that Mr. Boehm was not secretary of the company, but was assistant secretary thereof. This motion was heard March 18th following, and counter affidavits were filed tending to show that Boehm had been held out to the public as secretary of the relator and performed public acts required to be done by the secretary. The motion was denied April 10th following, and an appeal was at once taken from the order to this court, which was dismissed on appellant's own motion, because the order was not appealable, September 7th following. On March 8th the same summons and complaint was duly served on the president of the relator, and on April 8th following the relator sent its answer, in which it alleges that it answers the plaintiff's complaint served on it on the 8th day of March. By this answer it denied all negligence on its part, and alleged that no notice of injury under subdivision 5 of section 4222, St. 1898, was served within one year from the date of the alleged injury. It further appeared that on March 18, 1907, the relator served a demand, and notice of motion that the place of trial of the “action commenced by service upon said defendant of summons...
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