Downer v. McVickar , 15 Wis. 168 ( 1862 )

By the Court,

Cole, J.

It was conceded by the respondent on tbe argument, that judgment in this case was improperly taken against the appellant Nazro, and the Bank of Milwaukee. It seems they were not named in the summons, nor served with process, and it is obvious, therefore, that the court acquired no jurisdiction over them. Indeed the respondent stated that it was by mere inadvertance or mistake that he took judgment against them. The Bank of Milwaukee has not appealed from the judgment, but Nazro has. The judgment must therefore be reversed as to him, and affirmed as to the other parties defendants below.

It was insisted that the judgment should be reversed altogether, on account of an obvious mistake in the entitling of the affidavit made by respondent that no answer had been served by the defendants, and that he had filed notice of the pendency of the action as required by law. In the entitling of the affidavit, John Nazro and the Bank of Milwaukee are named with the other defendants, and therefore it is said the affidavit should not be regarded as made in the foreclosure suit of Downer vs. McVichar et al. It is not pretended that there are two foreclosure cases between Doivner and McVichar, with other and different persons, defendants. We hardly think we should be warranted in holding that the j udgment was erroneous as to parties served with process, and over whom, it is conceded, the court had jurisdiction, merely because in entitling the affidavit, a mistake was made, and one or two names were inserted which ought not to have been.

The question, here is one of identity, and the fact that the affidavit is attached to and made a-part of the judgment record, shows with sufficient certainty that it was made in this particular cause.

But for the reason before stated, the judgment as to the appellant Nazro must be reversed, with costs, and affirmed as to the other parties defendants.