Warner v. Simpson , 27 Wis. 115 ( 1870 )

Dixon, C. J.

Assuming that this action is properly brought against both defendants in the judgment, and that such is the true construction of that part of sec. 10, ch, 122, R. S., under which it is instituted (a point not necessary now to be decided, and which we do not decide), still the complaint is defective in not alleging which defendant was personally served, or that the defendant Simpson, who demurs, was personally served. Either this should be averred, or that he appeared in the suit, or otherwise the ground of his liability should be alleged. Without one or other of these allegations, no cause of action is shown against him. For the statute provides that, as against a defendant not personally served and who did not appear, the judgment “ shall be evidence only of the extent of the plaintiff’s demand, after the liability of such defendant shall have been established by other evidence.” R. S. ch. 120, sec. 169. The complaint avers “that process was not personally served upon all of said defendants,” and there it stops. It does not even aver that it was personally served on either, except by inference from the above negative allegation and the general averment that the judgment “ was duly given.” But, granting this to be sufficient as an averment of personal service upon one, it yet does not appear upon which one, and no ground of liability is alleged save only the j’udgment. No cause of action is, therefore, stated against either; or if against one, the complaint does not inform us which defendant it is. The averment that the j’udgment was duly given is good only as the statement of a cause of action against the defendant personally served; and against the other defendant the original cause of action or ground of liability upon which the j’udgment was rendered, must be averred. This is so by the very terms of the statute. It is only after such original liability or joint cause of action has been established by other evidence, that the judgment has any effect against the defendant not personally served. It then becomes evidence of the extent of the plaintiff’s demand, but of nothing more. The rule that what must be proved must also be alleged, is too familiar to require reference. To show a cause of action against the defendant not personally served, the original joint indebtedness or obligation must be stated, since the judgment is no evidence of that, and pleading the judgment does not plead it; and seeing that the complaint contains no averment as to which defendant was personally served, we cannot say that a cause of action is stated against either. It is entirely consistent with every allegation found in the complaint, that the respondent Simpson should not have been personally served, and that no joint liability or indebtedness should exist against him; and bis demurrer was, therefore, properly sustained.

By the Court. — Order affirmed.