Ely v. Tallman , 14 Wis. 28 ( 1861 )

By the Court,

Paine, J.

This case has once been before this court, and is reported in 6 Wis., 211. After the decision there made, a motion for rehearing was argued, and overruled for tbe reason that it was conceded that the decision was correct upon one ground, and therefore tbe court would not re-examine tbe others, either to “qualify or affirm ” its previous opinion. 8 Wis., 218. Since then there has been another trial, in which the defendant had a verdict and judgment, which is now brought here by a writ of error.

The principal question in the case is as to tbe admissibility and effect of the record of the foreclosure suit, under tbe sale in which tbe defendant claimed title. The plaintiff bad acquired tbe title of Rague, if be bad any; and he had, unless it was cut off by tbe foreclosure suit. This depends upon the question whether it sufficiently appears, or is to be presumed, that the court had jurisdiction over bis person.

Upon this question we deem it unnecessary to discuss at length the various positions taken by counsel. We have very fully considered the subject in the cases of Rape vs. Heaton, 9 Wis., 328, and Falkner vs. Guild [10 Wis., 563], and some other cases recently decided. And we think it follows from tbe principles we there sustained, that where tbe record discloses a particular mode adopted to acquire jurisdiction over tbe person of a defendant, if that is insufficient to confer jurisdiction, it will not be presumed that other mode was adopted, or that jurisdiction was acquired in any other way, unless there is something further in the record on which to base such presumption. It may be conceded that where the record is silent as to the mode of acquiring jurisdiction, it will be presumed. But where the record shows the mode resorted to, we know of nothing, either in authority or reason, that will warrant the presumption that another mode was resorted to. That would be presuming against the plain implication of the record. If, therefore, the record offered in this case showed nothing further on this point than the mode in which it was attempted to serve Bague with process, we think it would appear affirmatively that no jurisdiction was acquired over him. The complaint averred that he resided in Milwaukee county, yet the record shows that he was served only by publication in Bock county, upon the return of the subpoena by the sheriff of that county “not found” as to him, without any process being sent to Milwaukee county, where he resided. There was no authority to serve the process on him by publication in that way. And if that were all that appeared on the record we might be compelled to hold that his right of redemption was not cut off, and that it now belongs to the plaintiff.

But it is undoubtedly true that reasonable presumptions are to be indulged in, not contradictory to the record, to sustain the judgments of superior courts. And although legal service of process was not made on a defendant, yet if there is anything in the record fairly warranting the presumption that he appeared and thus conferred jurisdiction over his person, then this presumption should be indulged in, until the contrary is shown. We think there was something of this kind in this record. The entries in the journal by the clerk, which were offered in evidence, show that an attorney appeared in behalf of some of the defendants and opposed the motion for leave to file the order of publication nunc 'pro tunc. For aught that appears on the record, this attorney may as well have appeared for the defendant Bague as for any other defendant. And where the record shows a mode of service not sufficient to confer jurisdiction over a of tbe defendants, jet afterwards shows an appearance for some of the defendants, which may have been for them, it -will be presumed in favor of the action of a superior court, where it is brought collaterally in question, in the absence of anything to the contrary, that the appearance was for those defendants as to whom it was yet necessary for the court to acquire jurisdiction in order to authorize the judgment. We think this is going no farther than reason, and not so far as many of the authorities would warrant.

Having come to this conclusion, it becomes unnecessary for us to pass upon the question whether the parol evidence offered in support of the record, to show that Bague did appear by attorney, was properly admitted or not. This court in its first decision, before alluded to, held it admissible. But the grounds for its decision on the motion for a re-hearing would seem to indicate that the questions not passed upon in deciding that motion were intended to be in some measure left open. But it is unnecessary for us to re-examine them here; for as we have come to the conclusion that in view of the entries on the record itself the presumption was that the attorney appearing against the motion appeared for Bague, it follows that the record was sufficient on its face to sustain itself, and that no parol evidence to show that Bague appeared was necessary, until the plaintiff had first offered evidence that he did not appear. We shall therefore not pass upon its admissibility, and shall remark upon it no further than to say that it fully illustrates the reasonableness of the presumption on which we have based our decision. For notwithstanding there was no legal service of process on Bague, this evidence shows that he did appear by attorney, and thus fully submitted himself to the jurisdiction of the court.

The attorney for the plaintiff requested the court to instruct the jury “that if they found that Bague was not served with process, and that there was no appearance for him in fact, they should find for the plaintiff” This, as applicable to the question of jurisdiction, we think is a correct proposition of law, and should have been given to the jury if there was evidence warranting tbe court in submitting it to them. But there was not. Tbe presumption tbe entries in tbe record was, that Hague appeared. Tbe plaintiff offered no evidence to sbow that be did not appear. And even tbougb tbe jury disbelieved tbe parol evidence that be did appear, that would have left the case with tbe presumption, and there was nothing upon which tbe jury would have been authorized to find that be did not appear. Tbe instruction, therefore, was not warranted by tbe evidence.

Tbe decision of these questions necessarily disposes of tbe case, and it is unnecessary to say anything upon other points discussed.

Tbe judgment is affirmed, with costs.