Schmidt v. Stolowski

Siebecker, J. Appellant contends that tbe order of tbe circuit court should be reversed, and tbe relief demanded in ber petition for tbe vacation of tbe judgment rendered in tbe action should be granted, because it appears upon tbe face of tbe record that tbe affidavit of service relied on by tbe plaintiff is not entitled tbe same as is tbe summons and complaint. The discrepancy pointed out is an omission of tbe words contained in the summons “sole” and “formerly Skotzke.” Tbe summons is entitled on defendants’ part: “Ida Hoffmann and ber sole surviving joint-tenancy grantee, Antonina Siolowslci, formerly Skotzke, defendants,” while tbe affidavit is entitled: “Ida Hoffman and her joint-tenancy grantee, Antonma Sto-lowslci, defendant.” Tbe omitted words do not refer to tbe name of tbe party defendant, but are merely words of description, which were not essential to the summons. Their omission from tbe title is, at most, a clerical error in the affidavit of service, of no significance. Tbe parties are properly designated and named without their insertion. They do not add to or omit anything material and necessary in tbe title of tbe case. Tbe title as written in the summons and tbe affidavit of service are substantially tbe same. It is next insisted that tbe affidavit of service does not comply with tbe requirements of sec. 2642, Stats. 1898, in that it omits to state that tbe person who claims to have served tbe [59] summons knew tbe defendants to be tbe. same persons mentioned “in tbe summons.” Tbe affidavit states that affiant “duly served the summons,” etc., “in tbe above-entitled action on [defendants, naming them], by delivering to and leaving with each of them, personally, a true and correct copy thereof, [and] that be knew tbe persons so served as aforesaid to be tbe identical persons named as tbe defendants in the-above action.” In German Mut. F. F. Ins. Co. v. Decker, 74 Wis. 556, 43 N. W. 500, where a similar question was presented under tbe statute, it was stated that an affidavit of' service stating that tbe defendants named are all “personally-known to [tbe affiant], and are tbe identical persons named in said summons as defendants therein,” is equivalent to saying-“that be knew tbe persons served to be tbe defendants mentioned in tbe summons,” and such affidavit was held sufficient-under tbe statute. This rule was adhered to in Porath v. Reigh & S. Co. 112 Wis. 433, 88 N. W. 315, upon tbe ground that “tbe language of tbe statute need not be literally followed. Any language conveying, substantially, tbe statutory idea will do.” These adjudications rule this case, and under-them tbe affidavit of service is sufficient. Appellant further contends that tbe judgment is void, because the.court signed tbe findings and rendered judgment as upon default without taking proof, and before tbe filing of an affidavit of default. Tbe court found expressly that “there-was no appearance for or on behalf of either of tbe defendants in the action,” and in tbe judgment recites: “That the summons has been duly served on the defendants-herein, and that more than twenty days have elapsed since-such service, and that no answer to tbe plaintiff’s complaint has been served on tbe plaintiff’s attorney, and that no apr pearance has been made herein by tbe defendants.” This shows conclusively that tbe court passed upon tbe question of default, and this recital must control as far as the-record is concerned. Appellant’s argument as to tbe neces [60] ■sity of filing proof of default with tbe cleric before applying for judgment under sec. 2891, Stats. 1898, does not apply to •an application made to the court under subd.-2 of this section. This question wras passed upon in Reed v. Catlin, 49 Wis. 686, 6 N. W. 326. It is there held: “The second subdivision of the section authorizes the plaintiff to apply to the court for judgment in other actions wherein the defendant has made default, ‘upon the,like proof.’ . . . 'The words “upon the like proof,’ contained therein, evidently moan upon proof of the facts required to be shown in subd. 1 ■of the section, which confers authority upon the clerk to enter judgment in certain cases on default. We do not think subd. 2 requires that such proofs be filed. There is no necessity that they should be filed, because they are made- in court, and their sufficiency is determined by the court in the first instance.” See, also, Mitchell v. Rolison, 52 Wis. 155, 8 N. W. 886. Appellant mainly relies for relief under the demands of her petition upon the contention that there is no proof showing that the summons and complaint were served upon her, and that they were not in fact so served. The findings of the ■court and the judgment rendered therein, both bearing date of March 31, 1902, both state that it appeared to' the court that the summons was duly served on the defendants; and an affidavit of service was filed April 8, 1902, before entry of judgment. This is urged to be an insufficient showing of record that there was a service of summons, for the reason that sec. 2891, Stats. 1898, requires the evidence of such service to be filed with the clerk before the rendition of judgment. This claim is not supported by the authorities cited. They refer either to the filing of such proof in applications to the Merk for judgment under the first subdivision of this section, or present instances wherein the record of the evidence of such service, on which the court acted and relied, was wholly insufficient, to establish the fact of service, and hence was in•sufficient to authorize the entry of a valid judgment against [61] tbe defendants. Some confusion, of language appears in the cases upon this subject, through speaking of the want of proof’ of proper service as a jurisdictional question. The distinction between the fact of service, which is essential to jurisdiction, and proof of the fact of service, as the evidence of jurisdiction, has at times been lost sight of. If service of the summons in a case is, in fact, m'ade on the defendants, that gives the court jurisdiction to render a valid judgment, so far as the service of process is concerned, though the evidence of record, constituting the proof of service, may fail in essential particulars to establish that such service was in fact made. In cases where service was in fact had, the court has jurisdiction, and may after judgment permit an amendment of the' record to supply omissions necessary to show that the service-was in fact made. In cases wherein the record was incomplete, this court has repeatedly held judgments to be erroneous, instead of treating them as void, permitted the record to-be amended to show the fact of service, and has thereby recognized the principle that, when process has been actually served but the fact is not shown by the rectfrd, the court has jurisdiction, in the sense of possessing the power to enter a judgment which is conclusive on the parties; and it may supply proof' of such service after judgment. See Sueterlee v. Sir, 25 Wis. 357; Bacon v. Bassett, 19 Wis. 45; Rehmstedt v. Briscoe, 55 Wis. 616; Mitchell v. Rolison, 52 Wis. 155, 8 N. W. 886; Reed v. Catlin, supra; Hall v. Graham, 49 Wis. 553, 5 N. W. 943; McConkey v. McCraney, 71 Wis. 576, 37 N. W. 822; Zimmerman v. Gerdes, 106 Wis. 608, 82 N. W. 532. As stated, the record in this case shows that due proof of service was submitted to the court before the rendition of judgment, though it was not theretofore filed with the clerk. The omission to file with the clerk the written proof of such service,, submitted to the court before rendition of judgment, does not invalidate the judgment under the requirements of subd. 2, sec. 2891, Stats. 1898. The cases above cited hold that in [62] applying for judgment under subd. 2 of tbis section, such proof need not be filed with the clerk before rendition of judgment. It is sufficient if such proof is submitted to the court •before the judgment is rendered. Since the findings and .judgment show that proof of the fact of service was actually submitted and made before the court, the demands of the statute are complied with, and the judgment is valid until impeached by a direct proceeding establishing that process was not served as evidenced by the record. Upon the hearing of this petition the court found that appellant had in fact been served. In view of this finding the petition was properly dismissed and the judgment held to be valid. By the Court. — The order appealed from is affirmed.