Nichols v. Crittenden

Cassoday, J. Confessedly, the action is upon the joint contract of the five defendants. It is conceded that as to three of them the court never acquired any jurisdiction by service or otherwise. Upon such a record the plaintiff could not, at common law, proceed further in the action, and if he did, and obtained judgment, it would have been treated as a nullity even as to the defendant served. Hall v. Williams, 6 Pick. 232; Wright v. Andrews, 130 Mass. 149; Richards v. Walton, 12 Johns. 434; Hanley v. Bonoghue, 59 Md. 239. A judgment upon such joint contract is an entire thing, and cannot be separated into parts. Ibid. That such is the common-law rule has been recognized by this court. Bowen v. Hastings, 47 Wis. 236. It has recently been recognized, also, by the federal court for the eastern district. Patchin v. Hunter, 38 Fed. Rep. 52. Such being the rules of the common law, the plaintiff only had such rights of proceeding in the case as are given by statute. The statute simply authorized him to “ proceed against the defendant served, unless the court ” should “ otherwise direct,” and take judgment as therein authorized. Subd. 1, sec. 2884, E. S. Where two of the five of such defendants sought to be made liable on such joint contract are served, the statute cited does not authorize the plaintiff to proceed against one of them alone. The reason for this is that the record presents no controversy upon which such defendants can sever. In the last case cited, notwithstanding our statutes, Judge Jenkins justly observed: “The cause of [462] action is joint. In such case there can be no separable controversy. Separate answers tendering separate issues interposed by defendants sued jointly do not create separable controversies.” It is not a case where the court may, in its discretion, allow “a separate trial between the plaintiff and any of the several defendants,” upon the merits, under sec. 2844, R. S. The case must turn, therefore, upon the question whether the defendant Crittenden, as well as McGeoch, was, in legal effect, served with the summons before the making of the order appealed from. The only object of the service of the summons upon a defendant is to give the court jurisdiction over him, and thus authorize judgment in a proper case. Such jurisdiction is usually acquired by such service. The statute, therefore, refers to such service, not because it is the only method of obtaining jurisdiction, but because it is the usual method of acquiring jurisdiction. The essential thing which authorizes both the plaintiff and the court to proceed at all is the jurisdiction, however it may have been acquired. The service of notice of appearance or retainer generally by an attorney for the defendant is in all cases to be deemed an appearance in the case. Circuit Court Rule YIII. Moreover, the statute expressly declares that “ a voluntary appearance of a defendant is equivalent to a personal service of the summons upon him.” Sec. 2643, R. S. Such being the law, the appearance of the defendant Crittenden May 4, 1889, was equivalent to, and hence in legal effect was, a personal service of the summons upon him on that day. He was at liberty thus to appear as a matter of right, and without leave of the court. Elliott v. Espenhain, 59 Wis. 273. He was not, at the time of making his motion, in default, nor asking for any favor. He was entitled to have a copy of the complaint served upon his attorney, as demanded, before the court could properly [463] proceed further against him or in the action. He was entitled, as a matter of right, to the time given by statute within which to answer such complaint. It was only in case be should fail to answer within such time that the plaintiff could proceed against him as in default. Until such default or answer, the case was not in a condition to be determined or to be put upon the calendar. As observed, an action on such joint contract cannot be tried in fractions. It must be ready for trial or determination as to all the defendants served before it can properly be put upon the calendar. The order made, in effect, forced the appellant to answer instanter, and go to trial at the then present term of the court, or be barred from a hearing. A party cannot be thus deprived of such statutory rights by affidavits as'to the merits. Such statutory rights, thus disregarded, must, for the purposes of this appeal, be deemed substantial. Sec. 3069, E. S. In fact the order involves the merits of the action or some part thereof. Ibid. For the reasons given, we must hold that the order is appealable. McLeod v. Bertschy, 30 Wis. 324. By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.