Stroup v. Career Academy, Inc.

• Decision Date: 27 February 1968
• Citation: 38 Wis.2d 284,156 N.W.2d 358
• Parties: Dr. Clyde LeRoy STROUP, Respondent, v. CAREER ACADEMY, INC., et al., Defendants, Career Academy of Dental Technology-Washington, D.C. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 358

156 N.W.2d 358

38 Wis.2d 284

Dr. Clyde LeRoy STROUP, Respondent, v. CAREER ACADEMY, INC., et al., Defendants,

Career Academy of Dental Technology-Washington, D.C. et al.,

Appellants.

Supreme Court of Wisconsin.

Feb. 27, 1968.

Godfrey & Kahn, Milwaukee, William H. Alverson and James Ward Rector, Jr., Milwaukee, of counsel, for appellants.

Eisenberg & Kletzke, Milwaukee, Sydney M. Eisenberg and Jerome F. Pogodzinski, Milwaukee, of counsel, for respondent.

BEILFUSS, Justice.

Two issues are presented on this appeal:

1. Was the trial court's order allowing discovery in aid of pleading and denying dismissal for lack of personal jurisdiction without prejudice an appealable order?

2. When raised, must jurisdictional objections be tried prior to discovery examination of an adverse party and, if so, can the jurisdictional objection be raised by motion along with motions to limit or quash discovery?

Had the order solely denied defendants' motion to quash and limit discovery it would not be an appealable order. An order denying a motion to quash discovery has been expressly held nonappealable by this court. Quality Outfitters v. Risko (1958), 4 Wis.2d 341, 90 N.W.2d 638. Also, an order of the court which requires an adverse examination is not appealable since it is not an order granting a provisional remedy. The examination is granted as a matter of course by statute. Hyslop v. Hyslop (1940), 234 Wis. 430, 291 N.W. 337.

The order in this case went further. The request for relief from discovery was accompanied by an objection to jurisdiction. If the court had been presented with a motion to limit or quash discovery, but not presented with a challenge to jurisdiction, it could have required discovery without being concerned about jurisdiction because an appearance to move the court to limit discovery is a general appearance.

'It is well settled in this court that if a litigant desires to avail himself of want of jurisdiction of his person he must keep out of court for all purposes except that of objecting to jurisdiction, or, what is the same thing, moving to dismiss on that ground. If he takes any step consistent with the idea that the court has jurisdiction of his person, such appearance amounts to a general appearance and gives the court jurisdiction for all purposes.' See also Bitter v. Gold Creek Mining Co. (1937), 225 Wis. 55, 273 N.W. 509, 111 A.L.R. 921.' Ashmus v. Donohoe (1956), 272 Wis. 234, 236, 75 N.W.2d 303, 304, 57 A.L.R.2d 1106.

When the court is presented with an objection to jurisdiction, however, and then proceeds with the action, it is in effect deciding that it has jurisdiction to proceed and has, consequently, decided a jurisdictional question. Vande Voort v. Stern (1962), 16 Wis.2d 85, 114 N.W.2d 126.

Sec. 274.33, Stats., sets forth the kinds of lower court orders that may be appealed to the supreme court. Sub. (3) of this statute provides that when an order '* * * decides a question of jurisdiction. * * *' it is appealable. ²

The order did deny the motion to dismiss the action for want of personal jurisdiction but 'without prejudice.' The trial court was of the opinion that inasmuch as the defect did not appear in the service of the summons the question of jurisdiction should await the discovery examination and the service and filing of the complaint. However, discovery examination of a party, whether in aid of pleading or otherwise, is an assumption and exercise of personal jurisdiction over the party.

While it is true that an officer of the appellant corporations was served within the state, that service alone did not confer jurisdiction over the nonresident defendant corporations under our jurisdictional statutes as enacted in 1959. ³ Service of process upon an officer of a foreign corporation within or without the state is proper service under sec. 262.06(5)(a), Stats., (both the summons and complaint must be served in out-of-state service, sec. 262.12(1)(b)). However, simply serving the officer of the corporation either within or without the state does not in itself confer jurisdiction. Grounds for personal jurisdiction as provided and enumerated in sec. 262.05 must be present. The introductory paragraph of sec. 262.06 so provides:

'A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 262.05 may exercise personal jurisdiction over a defendant by service of a summons as follows: * * *' (Emphasis supplied.)

Sec. 262.04, Stats., also provides that personal jurisdiction lies only if jurisdictional grounds as set forth in sec. 262.05 or 262.07 exist. The revision note to sec. 262.04(2), written by Professor G. W. Foster, ⁴ makes this perfectly clear:

'Sub. (2) emphasizes the distinction between the means of notice (i.e. service of the summons) and the grounds for exercising personal jurisdiction. These distinctions are not sharply drawn in existing statutes but case decisions make it plain that a personal judgment is effective only where the court has jurisdiction of the subject matter, has furnished the defendant an adequate means of notice and opportunity to be heard, and, finally, there are adequate statutory grounds for personal jurisdiction.' (Emphasis supplied.)

An order of a court whether or not purporting to decide a question of jurisdiction does so when, as here, the court proceeds as though it had jurisdiction, and, when such is the case the order is appealable under sec. 274.33, Stats. Vande Voort v. Stern, supra. Consequently, the trial court's order in the instant case is appealable because it in effect decided the court had jurisdiction to require discovery.

Since the court must have jurisdiction to allow discovery, it follows that when an objection to jurisdiction is made, the jurisdictional issue should be tried before proceeding with discovery. The question remaining is whether the jurisdictional objection may be raised by motion along with a motion to limit or quash discovery.

The statutory provision controlling objections to personal jurisdiction is sec. 262.16:

'Raising objection to personal jurisdiction; general appearance. (1) General Appearance. An appearance of a defendant who does not object to the jurisdiction of the court over his person is a general appearance and gives the court personal jurisdiction over him.

'(2) How and When Objection Shall be Made. An objection to the court's jurisdiction over the person is not waived because it is joined with other defenses or motions which, without such objection to jurisdiction, would constitute a general appearance. Such objection shall be raised as follows:

'(a) By motion when a defect is claimed in the service of the summons without a complaint; or when the defect appears upon the face of the record other than the complaint; or in case of a judgment on cognovit or by default;

'(b) By demurrer when the defect appears upon the face of the complaint; and

'(c) By answer in all other cases.'

The defendants could not raise their jurisdictional objection by demurrer because no complaint had been filed. For the same reason they could not raise it by answer. Consequently, they attempted to raise the jurisdictional objection by motion. The trial court, however, ruled the defect claimed by the defendants was not in the service of the summons without a complaint and that consequently defendants could not raise the objection by motion. This left defendants with no method by which they could join the jurisdictional objection with their request for limitation of discovery.

Sec. 262.16(2), Stats., was considered in Pavalon v. Thomas Holmes Corp., supra. The defendant in that case wanted to demur to the complaint and also raise a jurisdictional objection. The facts to show a want of personal jurisdiction did not appear upon the face of the complaint. The defendant could not raise its jurisdiction objection if it wished to pursue its demurrer. A demurrer without objection to jurisdiction would have been a general appearance. The court relieved the defendant from its dilemma, saying:

'Prior to this court's action, in exercising its rule making power to create sub. (2) of sec. 262.17, Stats., effective September 1, 1956, a defendant who joined any defense or motion, which standing alone would constitute a general...