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71 Wis. 576

McConkey v. McCraney

Wisconsin Supreme Court

Decided April 17, 1888

Wisconsin Supreme Court · decided 1888-04-17

The following statement of the case was prepared by Mr. Justice Tayloe: The respondents commenced an action in the circuit court of Marinette county to recover upon contract.

Cited by 4 later decisions — most recently October 1905

4 state decisions

Relies on Pollard v. Wegener · Sayles v. Davis · Moyer v. Cook

Good law ✅— No negative treatment on recordhow we know

Decided 1888-04-17

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Per OuriaM;

¶1It is clear that the service of the summons and complaint, as shown by the record, was a void service. The sheriff failed entirely to ‘serve the papers as required by subd. 4, sec. 2636, R. S., when the defendant cannot be found. It is equally clear that the clerk had no authority to enter judgment out of term, had the service been made as required by said section. See sec. 2891, R. S. That the service was void and gave the court no jurisdiction of the person of the defendant, see Weis v. Schoerner, 53 Wis. 72; Hall v. Graham, 49 Wis. 553; Matteson v. Smith, 37 Wis. *578333; Sayles v. Davis, 20 Wis. 302; Pollard v. Wegener, 13 Wis. 569. That the clerk has no power to enter judgment out of term when the process is not personally served on the defendant, see Northrup v. Shephard, 26 Wis. 220; Moyer v. Cook, 12 Wis. 335; Morrison v. Austin, 14 Wis. 601; Northrup v. Shephard, 23 Wis. 513.

¶2The judgment of the circuit court is reversed, and the cause is remanded.

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