Heinemann v. Pier

WiNslow, J. It seems very plain that there was no legal service of the summons in this case, and that the pretended service should have been set aside. The statute prescribes that the summons shall be served upon the defendant personally, or, if not found, “ by leaving a copy thereof at his usual place of abode in the presence of some one of the family of suitable age and discretion, who shall be informed of the contents thereof.” Stats. 1898, sec. 2636, subd. 4. Statutes dispensing with actual personal service of process must be strictly pursued. Pollard v. Wegener, 13 Wis. 569. It is imperative that the summons be delivered to a member of the family to which defendant belongs. In this case it was delivered to defendant’s married daughter, who resided, with her husband, in the same house or building with defendant, but in separate apartments; the two households being managed separately, each paying their own expenses and employing their own separate servants. Families may be separate, though living under the same roof. If it were not so, then service could be made upon any one living in an apartment house by leaving the summons with some other person living in different apartments in the same building, but who, perhaps, is not even acquainted with the defendant. Such an interpretation of the statute would open a wide door to fraud, especially in this day, when apartment buildings housing many different families are so extensively used. In order to constitute a family, the persons composing it must be under one management or head. Poor v. Hudson Ins. Co. 2 Fed. Rep. 432. It cannot be said that the defendant was guilty of any laches in seeking relief. She moved promptly to set aside the service of the summons, but her motion was denied. No appeal could be taken from the order denying her motion. [189] Latimer v. Central E. Co. 101 Wis. 310. It can be reviewed only on appeal from the judgment. Drake v. Scheunemann, 103 Wis. 458. She therefore waited until judgment was entered, and thereafter made a second motion in the trial court to obtain the desired relief, and upon denial of the motion appealed. It is difficult to see how she could have done more. The defect being jurisdictional, she was not required to show merits. By the Court.— Judgment and orders reversed, and action remanded with directions to set aside the service of the summons and dismiss the complaint..