Driscoll v. Tillman

Vinje, J. The fact that no service was made on the petitioner is clearly shown by the proof and such finding is not questioned by the plaintiff. But he claims that the petitioner made a general appearance in the action when he came in and asked for the relief demanded in the petition as amended, based upon the allegations thereof to the effect that the mortgaged premises were sold for an inadequate price and that had petitioner known of the sale he could have protected himself. The answer did not admit these allegations and it contained a general denial, so the pleadings technically made the inadequacy of the price an issue. But no evidence was taken on the subject and no findings of the court made with reference thereto. The petitioner claims that the only purpose of the allegations as to the inadequacy of price was to allege damage to him by reason of the failure to serve him. Such allegations were needless, because if the judgment was entered against him without jurisdiction damage would be presumed from such wrongful entry and he would be entitled to have it set aside as to him. Since the petitioner appeared for the sole purpose of having the judgment vacated so far as it affected his property on the ground that he was not served in the action, it must be deemed that immaterial allegations showing how he was damaged thereby should not be held to constitute a general appearance, and especially so where the [248] issue claimed, to be raised by sucb immaterial allegations was not litigated and did not enter into the trial court’s disposition of the case. While it is true petitioner does not state that he makes a special appearance, that fact does not make the appearance general. The effect of the appearance cannot be controlled by the designation given it by the appearing party. In each case of doubt or dispute the court will look at the nature and object of the appearance and the issues necessarily raised and litigated thereby, and from such inspection determine whether the appearance is general or special. If the appearance is for the sole purpose of vacating an order or judgment for lack of jurisdiction because of no service of process on the party appearing, then the appearance is special whether so designated or not. Blackburn v. Sweet, 38 Wis. 518; Sanderson v. Ohio Cent. R. & R. Co. 61 Wis. 609, 21 N. W. 818; Kingsley v. G. N. R. Co. 91 Wis. 380, 64 N. W. 1036; Bestor v. Inter-Gounty Fair, 135 Wis. 339, 115 N. W. 809. The case of Spencer v. Osberg, 152 Wis. 399, 140 N. W. 67, may seem to conflict with this statement. In that case, however, the motion to vacate the judgment did not state that it was because of lack of service on the moving party. There was merely a general motion to vacate the judgment without stating upon what ground. This fact was inadvertently omitted from a statement of the case. Eor that reason, and because the proof in fact showed service, the trial court denied the motion and this court sustained its action. On the other hand, if the moving party asks for any relief that can be granted only by a court having jurisdiction, then the.appearance will be held to be general though denominated as special. Grantier v. Rosecrance, 27 Wis. 488; Anderson v. Coburn, 27 Wis. 558; Alderson v. White, 32 Wis. 308; Bestor v. Inter-County Fair, 135 Wis. 339, 115 N. W. 809; State ex rel. Engle v. Hilgendorf, 136 Wis. 21, 116 N. W. [249] 848; Rix v. Sprague C. M. Co. 157 Wis. 572, 147 N. W. 1001. Tbe circuit court properly beld tbat tbe petitioner was not, guilty of sucb laches as to bar him from tbe relief asked. It is true be waited about four years after be discovered tbe existence of tbe judgment and until tbe statutes of limitation barred plaintiff’s remedy against him personally before be applied to tbe court for relief. But be does not ask for relief on equitable grounds. If be did, another question would be presented. He stands purely on bis legal right to have a judgment obtained against him without jurisdiction of bis person set aside. In sucb cases mere delay or acquiescence will not bar' tbe remedy unless it has continued so long as to defeat tbe right itself. 5 Pom. Eq. Jur. (1 Eq. Rem.) § 24 and cases cited; Pollard v. Wegener, 13 Wis. 569; Godfrey v. Wright, 151 Wis. 372, 139 N. W. 193. Tbe eases of Russell v. Fish, 149 Wis. 122, 135 N. W. 531; Langlade R. Co. v. Magee, 156 Wis. 457, 145 N. W. 1101; and Bur v. Bong, 159 Wis. 498, 150 N. W. 431, cited and relied upon by plaintiff’s counsel, related to the granting of relief on equitable grounds, and hence are not applicable to tbe case at bar. Tbat a petition in tbe original action is a proper remedy was ruled in Stein v. Benedict, 83 Wis. 603, 53 N. W. 891, and in Jackson M. Co. v. Scott, 130 Wis. 267, 110 N. W. 184. No other claims of error are of sufficient merit to justify treatment in an opinion. By the Court. — Order affirmed.