Sayles v. Davis

Dixon, C. J. Rule 41 of the rules of the circuit courts provides that where the service of the summons shall be made by any other person than the sheriff, it shall be necessary for such person to state in his affidavit of service, at what particular place he served the same, and, in case of personal service, that he knew the person served to be the person mentioned and described in the summons as defendant therein. The ser-, vice in this case was not by the sheriff, and the affidavit is defective in both these particulars. The defendant not having appeared in the court below, appeals from the judgment against him, and asks to have it reversed for want of jurisdiction. The affidavit shows no service as required bylaw, and consequently no jurisdiction in the court to render the judgment; and we think it must be reversed. The venue shows that the affidavit was made in Milwaukee county, and it also appears from the affidavit that service was made upon the other defendant, Moore, 304 by copy left at Ms residence in tbe city of Milwaukee on tbe same clay of tbe supposed service upon Davis. It is urged from these facts tbat tbe service upon Davis must bave been in Milwaukee. Tbis may be regarded as very probable; but it is by no means impossible tbat tbe affiant may bave served Moore in Milwaukee and Davis at CMcago or some other place out of tbe state on tbe same day, in which case no jurisdiction whatever would bave been acquired as to Davis. Tbe practice of allowing process to be served by persons other than an officer of tbe law or bis deputy, acting under oath, is a relaxation of tbe common law rule, and no presumption is to be indulged in such cases upon facts which are not wholly inconsistent with any other hypothesis than tbat tbe service was legally and properly made. I think tbe reversal of tbis judgment not in conflict with my views in tbe cases of K- v. H- and Robbins v. Deverill, decided at tbe last term [ante, pp. 239 and 142]. Not having been served with process, tbe appellant bad no opportunity of appearing or making objection before tbe judgment was rendered, and consequently cannot be said to bave waived any-tMng. It is trae be might bave moved tbe comt below to set aside tbe judgment for want of jurisdiction, and it would bave been done. Ætna Insurance Co. v. McCormich, [ante, p. 265], and Wetherbee v. Wetherbee, decided at tbe present term. Tbis, in general, would be tbe better practice, as it expedites tbe remedy and saves expense. Still, as tbe practice of reversing such judgments on appeal is well settled, I do not think be can be considered to bave waived bis remedy in tbat form, by not having resorted to tbe other remedy by motion. By the Oourt. — Judgment reversed.