Likens v. McCormick

RyaN, C. J. Tbe respondents appeared below specially for tbe purpose only of moving to vacate tbe judgment, evidently on tbe ground that tbe court bad not acquired jurisdiction over them. Tbe peculiarity of tbe case is, that, on this motion, tbe court below not only vacated tbe judgment, but set a time for tbe respondents to answer, and ordered tbe costs to abide tbe event of tbe cause; presumably assuming jurisdiction, and proceeding on tbe ground of irregularity. Tbe respondents have not appealed from this part of the order, and must be taken as submitting to it. We think that tbe order, so submitted to, operates to cure all defect of jurisdiction. Ruthe v. R. R. Co., 37 Wis., 344, and cases in this court collected by Dixon, C. J., in a note to Heidenheim v. Sprague, 5 Wis., 259. Had tbe waiver of tbe jurisdictional defect been by voluntary appearance of tbe respondents, tbe question here would have been different. But tbe waiver rests 316 solely on. tbeir submission to tbe order appealed. Tbe appeal is from tbe whole order, and if it were reversed, it would leave tbe court below without jurisdiction. Anderson v. Coburn, 27 Wis., 558, and other cases in this- court. Tbe question for us is therefore one of regularity, not of jurisdiction. The appellant’s affidavit on which the order of publication was made, gives the full Christian and surnames of the respondents, and states that they reside in Chicago. After the order of publication, a copy of the summons and complaint was mailed, directed to the respondents by the name of their firm as stated in the affidavit, giving .the initials only of their Christian names. If copies had been separately so directed and mailed to each, it would have been a doubtful service. Kellam v. Toms, 38 Wis., 592. But the mailing of one copy to both could operate at best as service upon one only, not affecting the other. Blackburn v. Sweet, 38 Wis., 578. And the uncertainty which respondent, if either, might receive a copy so mailed to both, makes it aprima faeie void as to both. Afterwards there was personal service on one of the respondents in Chicago, but no apparent attempt to serve the other. So that there is a manifest failure to follow the statute. This mode of service has been sustained by this court. Jarvis v. Barrett, 14 Wis., 591. But the statute must be strictly followed. Anderson v. Coburn, supra. The judgment was clearly irregular, in a point affecting the substantial rights of the respondents, and they were entitled .to have it opened. By the Gourt. — The order of the court below is affirmed.