Northrup v. Shephard , 26 Wis. 220 ( 1870 )

Dixon, C. J.

It is unnecessary to consider here whether the service upon the defendant Shephard was good or not, or whether the court acquired jurisdiction over his person by virtue of the process alone, since a fact is made known by this record which did not appear when the cause was here on the former appeal. 23 Wis. 513. The record now shows that there was an appearance on the part of the defendant within five days after the service of the summons and complaint. He appeared in the action by his attorneys, and moved to set aside the complaint. The motion was regularly served and noticed, and on the day of hearing, his attorneys appeared before the court and declined to prosecute it, and it was discontinued, with five dollars costs of motion against him. There can he no doubt that this was an appearance. Moving to set aside the complaint was inconsistent with any other supposition than that the court had acquired jurisdiction of his person by the service of the summons. It was an admission that the court had such jurisdiction.

The defendant having appeared in the action, the next question is, whether he was entitled to notice of the plaintiff’s application to the court for judgment. It is clear that such notice should have been given to his attorneys at least eight days before the application was made, in the manner prescribed by subd. 2 of sec. 27, ch. 132, R. S. The service upon him was not “ personal,” but by “ copy.” It is only where the service is “ personal ” that application may be made to the clerk under subd. 1 of the same section. Moyer v. Cook, 12 Wis. 335. If the service is “ by copy,” application for judgment must be made to the court under subd. 2, in which case the requirements of that subdivision must be complied with. The case of Sayles v. Davis, 22 Wis. 225, presented quite another question, since the appearance there was not until after the time for answering had expired. The order must be reversed, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.