State ex rel. Nelson v. Grimm

• Decision Date: 03 December 1935
• Citation: 263 N.W. 583,219 Wis. 630
• Parties: STATE EX REL. NELSON v. GRIMM.
• Court: Wisconsin Supreme Court

219 Wis. 630

263 N.W. 583

STATE EX REL. NELSON

v.GRIMM.

Supreme Court of Wisconsin.

Dec. 3, 1935.

Original action. Petition for writ of prohibition.

Peremptory writ denied.

Action by the State, on the relation of Paul H. Nelson, against George Grimm, circuit judge. Permission to bring the action was given and an alternative writ was issued. The basic facts on which the relator claims judgment for a peremptory writ should be entered are as follows: Chas. W. Montague brought an action in the circuit court for Rock county against H. E. France in which he seeks recovery for injuries sustained in an automobile collision that resulted from negligence of France in operating an automobile in this state. France is a nonresident of the state and jurisdiction of his person was procured pursuant to section 85.05 (3), Stats. France appeared in the action and sought to interplead Nelson, who is also a nonresident of the state, on the ground that when injured the plaintiff was riding in an automobile driven by Nelson and that negligence of Nelson operated as a cause of plaintiff's injuries and he (France) is entitled to judgment of contribution against Nelson in case recovery is had against him. To effect the interpleader, he went before a court commissioner with a petition reciting the facts as he claimed them and procured an order signed by the court commissioner requiring Nelson and the plaintiff to appear before the court at a time and place stated and show cause why an order of interpleader should not be made and directing service of the order by filing a copy of it and the affidavit whereon it was based with the secretary of state, and mailing a copy of each to Nelson at his last-known address as given in the affidavit. At the time and place stated in the order to show cause, the court commissioner who issued the order signed an order purporting to interplead Nelson as a defendant in the action. The order directed amendment of the summons and complaint and service thereof upon the defendants within twenty days, and service of such answer as the defendants might have thereto and service of such cross-complaint as France might have, within twenty days after service thereof upon him. This order recites that the attorneys for the relator “appeared specially, but interposed no objection to the motion” for interpleader. The record herein contains a copy of an amended summons and complaint filed by the plaintiff in the circuit court in which Nelson is named as a defendant. The amended complaint charges negligence of both Nelson and France in operating their respective automobiles and resulting injury and demands judgment against both of them. These were served on Nelson by filing copies with the secretary of state and timely mailing copies addressed to Nelson at 717 Milwaukee avenue, Chicago, Ill., which is the address given in the original affidavit presented to the court commissioner. These were sent by registered mail and the return card recites receipt of the registered letter. It gives the name of Paul A. Nelson as the addressee and was signed by “E. M. Graser, agent.” Subsequently the attorneys of Nelson herein filed in the circuit court a five-page document entitled in the circuit court action reciting that Nelson “appears specially in said action and as a plea in abatement therein alleges” numerous matters, the material portions of which may be summarized as follows: Montague began an action as above stated. France procured an order to show cause from a court commissioner in terms and upon proceedings as above stated. The affidavit upon which the order was based gave Nelson's post office address at a place where he did not and never had resided and which was not and never had been his post office address. The affidavit filed with the court commissioner recited that the order to show cause and affidavit on which it was based were mailed addressed to Nelson at the said address, and that a copy of the order and affidavit were filed with the secretary of state. Nelson's attorneys appeared specially before the court commissioner in said matter and objected to the jurisdiction of the court commissioner to enter an order therein. Notwithstanding their objection, the commissioner signed an order of interpleader as above stated. The circuit court did not obtain jurisdiction over Nelson (1) because the court commissioner had no authority to make the order of interpleader; and (2) because the order and affidavit were not mailed to Nelson at his last-known address, and that neither his address nor residence was or ever had been at the address to which the affidavit of service recited that they were mailed. The prayer of the “plea in abatement” is that “the order of interpleader and the amended summons and complaint adding Nelson as a party be abated and that he (Nelson) recover his costs and disbursements from the plaintiff Chas. A. Montague and the defendant H. E. France.” An affidavit of plaintiff's attorneys filed as an answer to Nelson's “plea in abatement” states that the only address they could upon inquiry discover as the address of Nelson was that given in the original affidavit of France presented to the court commissioner. That they had mailed several letters to Nelson at said address, and had in each instance received reply thereto from Nelson or his attorneys. The court on the record and the several affidavits “overruled, denied and dismissed the plea in abatement” and directed Nelson to answer the complaint within twenty days. Thereupon Nelson petitioned this court for leave to bring this proceeding for a writ prohibiting prosecution of the action against him. Leave to do so was granted. It was thereupon stipulated that the petition stand as the complaint; that the record stand in lieu of the circuit court's return; and that a demurrer to the complaint be filed on the ground that it does not show facts sufficient to warrant issuance of a peremptory writ of prohibition.Woolsey, Caskey, Woolsey & Hopper, of Beloit, for petitioner.

Fiedler & Garrigan and Arnold, Johnston & Robson, all of Beloit (Geo. W. Keithley, of Beloit, of counsel), for defendant.

FOWLER, Justice.

The petitioner contends that he is entitled to a writ of prohibition (1) because the court commissioner had no power to make an order of interpleader, and (2) because the order to show cause and the accompanying affidavits were addressed to a place of business which was not and never had been his post office address. The defendant France and the plaintiff contend (3) that although the order of interpleader was void, the plaintiff had the right to amend his summons and complaint regardless of the order and that having done so and having served them pursuant to section 85.05 (3), Stats., the petitioner is thereby made a party and due service has been made upon him; (4) that the petitioner's appearance was a general appearance although he denominated it as special. We will first consider the contentions of France and the plaintiff. For convenience, Nelson will hereinafter be referred to as the petitioner, and the plaintiff in the original action as the plaintiff.

[1] (3) The plaintiff is correct in his position that he might rightly amend his summons and...