Public-domain · open source
OpenJurist

37 Wis. 333

Matteson v. Smith

Wisconsin Supreme Court

Decided January 15, 1875

Wisconsin Supreme Court · decided 1875-01-15

<p>Service op Summons. (1,8) Proof of, under rule of court, when by other than sheriff. Requisites of affidavit of.</p> <p>1. Under rule 41, 0. 0. Rules, where the summons is served by any other person than the sheriff, the affidavit of service is insufficient if itdoes not state that a copy was left with (as well as delivered to) the defendant.</p> <p>8. In case of service by leaving a copy of the summons with one of defendant’s family, the return must show that the person making the service could not find the defendant himself.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1875-01-15

How this case has been cited

Cited by 6 later decisions — most recently February 1904

6 state decisions

301875188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Lyon, J.

¶1This appeal is from a judgment for' the foreclosure of a mortgage executed by the defendant Smith. The defendants Rice and wife are subsequent incumbrancers of the mortgaged premises. Neither defendant made appearance in the action. The summons was served by a person not an officer, and the affidavit of service is, that on a day and at a place therein named, the affiant served the summons and complaint, “personally on B. J. Rice and Naomi Rice, to him personally known, by handing each of said defendants, at their residence, a true copy thereof;” and on the defendant Smith,, “ by leaving a true copy thereof with his wife, at his residence, at his last and usual place of abode, … who was informed of the contents thereof, she being a member of his family and a person of suitable age.”

¶2Disregarding other alleged defects in the service, the return fails to show that a,copy of the summons was left with either of the defendants Rice, or that the defendant Smith was not found.

¶3Rule 41 of the circuit court provides that where the service of the summons shall be made by any other person' than the sheriff, it shall be necessary for such person to state in his affi*334davit of service, inter alia, whether he left with the defendant a copy of the summons, as well as delivered it to him. This rule, which directs the manner in which proof of service by a person other than the sheriff shall be made, has the force of a statute; and in Sayles v. Davis, 20 Wis., 302, a judgment by default was reversed for failure to comply with it. The record fails to show, therefore, that the'court obtained jurisdiction to render judgment against the defendants 'Bice.

¶4Neither did the court acquire jurisdiction of the defendant Smith. Before a service made upon him by leaving a copy of the summons with one of his family can be held valid, it must affirmatively appear from the return that the person making the service could not find him. Knox v. Miller, 18 Wis., 397. See also Pollard v. Wegener, 13 Wis., 569; Northrup v. Shephard, 23 id., 513.

¶5By the Court. —Judgment reversed.

/37/wis/333 · .json · Public domain