Ruthe v. Green Bay & Minnesota Railroad , 37 Wis. 344 ( 1875 )

Lyon, J.

The refusal of tbe justice to dismiss the action is the only error alleged and relied upon to reverse tbe judgment. The sole ground of the motion to dismiss was, that, in the several particulars therein specified, the justice failed to obtain jurisdiction of the action. Hence, we are only called upon to determine whether the justice had jurisdiction to render the judgment appealed from. It will be most convenient to consider the objections to such jurisdiction in the order stated in the brief of counsel for the defendant.

I. It is argued that service of the warrant of attachment upon-a station or depot agent of the defendant railroad company is not sufficient; and, strangely enough, the counsel cites Tay. Stats., 1355, § 20, to sustain the position. But that paragraph includes sec. 1, ch. 34, Laws of 1870, which provides expressly that in all actions for damages against any railroad company (and this is such an action), service of process may be made upon any station or depot agent of the defendant. Some other objections are taken to the return of the constable who served the process; but we think the return is sufficient.

But any defect in the service or return goes only to the jurisdiction of the justice of the person of 'the defendant, and may be waived by a general appearance to the action. See cases cited in Judge Dixon’s note to Heidenheim v. Sprague, 5 Wis., 259, and particularly Damp v. Dane, 29 id., 419, and Blackwood v. Jones, 27 id., 498. We are inclined to think that the taking of an appeal is such an appearance, and operates as a waiver of any defects in the service and return of the process.

II. It is further argued that the affidavit for the warrant of attachment is insufficient to confer jurisdiction upon the justice to issue the warrant, because; 1. It does not state that the indebtedness is due upon contract express or implied; 2. The person whose name is signed to the affidavit is not the person named as plaintiff in the action ; and 3. The title of the act under which the defendant is incorporated is not given.

Waiving the question whether the appearance of the defendant does not also cure all defects in the affidavit, we think none of the objections thereto are well taken. 1. As we. understand the affidavit, it does state that the plaintiff’s claim is due upon express contract. That is to say, it contains aver-ments of fact, which, if true, constitute an express contract; and this is sufficient. 2. As to the variance or misnomer. That is not a jurisdictional defect, but may be corrected by proper amendment at any time. Besides, it is quite probable that Ruthe and Ruty are idem sonans; and, if so, no amendment was or is necessary. 3. Our attention 'has not been called to any law which requires the title of the act incorporating the defendant to be stated in the affidavit. If such statement is necessary in a pleading, the omission of it does not go to the jurisdiction of the court, but may be supplied by amendment before or after judgment.

III. It is said there is no complaint in the action. We think there is a complaint, although it may have been put in orally, and that it contains the same averments which the affidavit contains. The reference to the affidavit, in the docket of the justice, has the same force and effect as though the justice had copied such affidavit in his docket as the complaint in the action.

IY. A manuscript brief has been furnished on behalf of the defendant, in which the learned counsel contend, with much ingenuity of argument, that a justice of the peace has no jurisdiction to issue a warrant of attachment against a corporation organized under the laws of this state. But the counsel have evidently overlooked an important provision of the statute, which is, of itself, a perfect answer to their argument. “ Actions against corporations may be commenced in the same manner that personal actions are commenced against individuals.” R. S., ch. 148, sec. 1. Hence, actions may be .commenced against domestic corporations, before justices of the peace, by attachment.

The foregoing observations dispose of all the objections to the jurisdiction of the justice, adversely to the defendant. It follows that the judgment of the circuit court should be affirmed.

By the Court. — Judgment affirmed.