New Dells Lumber Co. v. Industrial Commission

Siebeckeh, J. Sec. '2394 — 19, Stats., provides that a party aggrieved by an order or award of the Industrial Conir mission under the Workmen’s Compensation Act may bring an action for the review thereof against the Commission, “in which action the adverse party shall also be made defendant.” Under this statute it has been held that “It would be unreasonable, if not absurd, to require the claimant under the award to be made a party defendant with no obligation to make service on him as a jurisdictional requisite to his being afforded his day in court. The fair meaning of the statute is that service on the Commission in the manner specified 'shall be deemed completed service’ on it, and that the requirement as to making the 'adverse party’ a defendant includes that of making service on such party as in ordinary cases.” Hammond-Chandler L. Co. v. Industrial Comm. 163 Wis. 596, 602, 158 N. W. 292. In the recent case of Gough v. Industrial Comm. 165 Wis. 632, 162 N. W. 434, it was held that the provision of this section of the act requires that the summons and complaint in such an action for the review of the award be served on the adverse party within the twenty days limited by the provision of the above section of the statute, and that in default of such service of the summons and complaint on the adverse party the court acquired “no jurisdiction to proceed in any action‘which would necessarily affect the rights of such adverse party.” This adjudication declares the legislative intent of the statute and leaves no room for the contention that the legislature intended that “service upon the secretary of the Commission or any member of the Commission shall be deemed completed service,” and that it confers jurisdiction on the circuit court to proceed in the action if the adverse party is made a party to such action, though not served with [210] a summons and complaint within the twenty days limited by the statute. It is not claimed that the summons and complaint in this action were put in the hands of the sheriff or other person authorized to make service thereof for the purpose of serving them on Frieda Yermen personally or by publication. No question, therefore, arises as to the effect of such an attempted service on Frieda Vennen. It is considered that, under the limitation of twenty days specified in sec. 2394 — 19 for the service of the summons and complaint in this class of actions, no facts and circumstances are presented by the plaintiff in this case for Avhich relief from the default can be granted, if the statute permitted such relief, which is not decided. Bv the Court. — The order appealed from is affirmed.