Alderson v. White , 32 Wis. 308 ( 1873 )

DixON, C. J.

This case is ruled by those of Grantier v. Rosecrance, 27 Wis., 488, and Anderson v. Cohurn, id., 588. In the former it was held that a motion to set aside a judgment on the ground that the complaint did not state a cause of action, was a general appearance, aiid waived any defect in the service of summons, although the notice of motion stated that the defendant appeared “ specially ” for the purpose of setting aside the judgment, and although such defective service was also assigned as a ground for the motion. In the latter it was decided that where a defendant, not duly served with process of summons, appeared after an execution sale under a judgment in the cause, and moved to set aside the judgment and execution, not only because of the defective service, but for lack of proof of certain facts essential -to his liability, -and for excess of damages, this was a general appearance, and cured the defect of jurisdiction.

In the motion of the defendants to set aside the judgment first entered in this action, which motion was granted, one of the gounds assigned, aside from those specifying defects in the service of the summons and want of jurisdiction of the court over the persons of the defendants, was, “ that there was no proof that a notice of the pendency of the action was filed with ■the register of deeds of Iowa county, in the manner prescribed by law.” Moving to set aside the judgment on this ground was inconsistent with the other grounds of motion stated. It was moving to set the judgment aside on a ground of irregularity merely in the rendition of it, and not of a defect of jurisdiction to render it. It was a ground of relief consistent with the fact of jurisdiction, and implying its existence. A motion of the kind granted on that ground would carry with it all objections to the jurisdiction of the court growing out of defective service of its process upon the persons-of the defendants making the motion. It would be a submission on their part to the jurisdiction of the court, because the relief granted would be inconsistent with any other reasonable hypothesis. Vacating the judgment for irregularity implies that the court has the power to correct the error, or by that means to open the way so that it may be corrected. And the asking of such relief, whether granted or not, is also a submission and waiver of jurisdictional defect, and for the same reason. The party seeking to take advantage of want of jurisdiction in every such case, must object on that ground alone, and keep out of court for every other purpose. If he goes in for any purpose incompatible with the supposition that the court has no power or jurisdiction on account of defective service of process upon him, he goes in and submits for all the purposes of personal j uris-diction with respect to himself, and cannot afterwards be heard to make the objection. It is a general appearance on his part, equivalent in its effect to proof of due personal service of process.

Another judgment was afterwards taken and entered by the plaintiff and, like the former, also as upon default or want of appearance of the defendants. This also was followed by a like motion to set it aside. The motion was denied, and from the order denying it’this appeal was taken by the defendants. The grounds of motion were, that there was no proper or sufficient service of the summons, etc., and in addition that there had “ been an illegal and excessive taxation of costs, and error made in computing the amount due upon said note and mortgage.” Asking relief on the latter ground clearly constituted a general appearance in the action, if the defendants had not already so appeared by their first motion.

It was suggested at the bar that the motion should have been granted because no notice was given to the defendants of the time and place of applying to the court for the relief demanded by the complaint. The first motion was made after the time for answering had expired, and the appearance of the defendants by that motion did not entitle them to the eight days’ notice of the time and place of application to the court for judgment, as in other cases of appearance. Sayles v. Davis, 22 Wis., 225.

If the defendants desired and were entitled to relief on the ground of an illegal and excessive taxation of costs, and of error to their injury in computing the amount due upon the note and mortgage, they should have shown the facts by affidavit, and the relief would have been granted. It is no doubt competent for the court to correct such mistakes in a proper case, but the defendants made no such case. No affidavits were filed or information otherwise given to the court, establishing their claim to such relief.

But had the defendants been entitled to the eight days’ notice, yet the objection could not have been considered here, because it was not one of those assigned in support of the motion in the court below. A specific assignment of objections there precludes the bringing forward of any new ones here; for this court listens only to such points and objections as it appears were or might have been urged at the hearing below, and will examine no others.

By the Court.— Order affirmed.