Simon v. de Gersdorff

Eschwbix.ee, J. Assuming for the purposes of this appeal, without deciding the same, that the circuit court was right in holding that the defendant, as counsel, was entitled, unless he waived the same, to his plea of privilege from service of civil process while in this jurisdiction for the purpose of attending such proposed examination of the plaintiff in the action brought by the plaintiff against the Marshall & Ilsley Bank, the question is now left to be determined whether or not the proceedings taken by the defendant in [174] his moving the court below to suppress the proposed examination of him were of such a nature that thereby he waived and lost any privilege of immunity from service of process. It has often been held in this court in cases involving the question of whether a court has acquired jurisdiction over a defendant that he who wishes to challenge the alleged jurisdiction of a court over him must confine himself solely to that question, and if by any application on his behalf relief is sought on other matters or of a nature which would require the recognition of the jurisdiction of the court, that the objection on the ground of want of jurisdiction is waived and lost and cannot thereafter be re-asserted; that is, a defendant cannot be allowed to assert that the court is without proper jurisdiction over him and at the same time ask the same court for other relief which could only be granted by a court having proper jurisdiction. State ex rel. Engle v. Hilgendorf, 136 Wis. 21, 116 N. W. 848; Rix v. Sprague C. M. Co. 157 Wis. 572, 147 N. W. 1001; Bestor v. Inter-County Fair, 135 Wis. 339, 115 N. W. 809; Blachburn v. Sweet, 38 Wis. 578. A similar rule should apply in a case like this where the defendant asserts a claim that he, being a nonresident counsel, in attendance in the capacity of counsel upon proceedings in another action then pending in this jurisdiction, is privileged from service of civil process, and at the same time also asks that another proceeding in this same action and looking to the proposed examination of him as ah adverse party under sec. 4096, Stats., should be suppressed, and gives as reasons therefor that the same is not in good faith, that ■the plaintiff seeking such inquiry is already in possession of .all the material facts and therefore needs no such examination. The latter request is asking for relief in a matter entirely separate and distinct from the matter involved in his application to be relieved from the service of the summons. 32 Cyc. 495. [175] Manifestly, if lie was entitled to relief on Ms first plea of privilege from service and for tfiat reason entitled to Rave tfie service of the summons vacated and set aside, then it necessarily follows tfiat, tfie court Raving determined tfiat it would proceed no further in tfie cause, tfie service of tfie sub-.preña and notice of tfie proposed examination would Rave become null and of no effect. On tfie other Rand, were tfie service of tfie summons upheld, fie still might be entitled to have tfie proposed examination suppressed for tfie reasons and on the grounds set forth in fiis affidavit and as asked for in fiis order to show cause. Tfie one is an application consistent only with a1 claim tfiat tfie court shall not proceed further concerning him. Tfie other is consistent only with a recognition of a continuation of tfie power of tfie court over him subsequent to tfie service of tfie summons. W-Q therefore hold tfiat fiis assertions in fiis affidavit and order to show cause tfiat fie is entitled to have tfie proposed examination suppressed on tfie merits must be construed as a waiver of fiis plea of privilege from process, and tfie court below was right in so holding.' Some question fias been raised as to whether this claim to have tfie examination suppressed upon tfie merits was presented or argued in tfie court below and tfie decision of tfie •trial court intimates tfiat it was not considered or passed upon, but we deem it immaterial whether it was or was not argued and presented to tfie court. It was a position of record taken by defendant and apparently not withdrawn, even if it were not argued before tfie court or passed upon by it. It is also suggested that tfiat portion of tfie affidavit should be disregarded on tfie ground tfiat an application of tfiat kind is futile, in tfiat it is not within’ tfie power of tfie circuit court to deny tfie right to an examination of an adverse party under sec. 4096, Stats. Tfie trial court, however, has undoubtedly tfie power and duty of determining whether tfie showing made by a party asking for such an examination is sufficient. [176] to warrant its allowance. State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900; Badger B. M. Co. v. Daly, 137 Wis. 601, 119 N. W. 328; Ellinger v. Equitable L. A. Soc. 138 Wis. 390, 120 N. W. 235. We find nothing in the case of Driscoll v. Tillman, 165 Wis. 245, 161 N. W. 795, and relied upon by defendant’s counsel, that affects the position taken herein. By the Court. — The order of the circuit court is affirmed, and the cause remanded for further proceedings.