Summary
In Fontaine v. Milwaukee County Expressway Comm. (1966), 31 Wis.2d 275, 143 N.W.2d 3, this court pointed out the applicability of sec. 269.37, Stats., which requires service on a party's attorney.
Summary of this case from Beloit Corp. v. Department of Industry, Labor & Human RelationsOpinion
May 10, 1966. —
June 7, 1966.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Reversed and remanded.
For the appellant there was a brief by Robert P. Russell, corporation counsel of Milwaukee county, and Hugh R. Braun, assistant corporation counsel, and oral argument by Mr. Braun.
For the respondent there was a brief and oral argument by Roland J. Steinle, Sr., and Gregory Gramling, Jr., both of Milwaukee.
On June 9, 1964, the Milwaukee County Expressway Commission condemned the property of plaintiff Myrtle Fontaine and made an award of damages. Pursuant to sec. 32.05 (9), Stats., Mrs. Fontaine took an appeal to the condemnation commission, which held hearings on July 16 and 19, 1965. Myrtle Fontaine appeared at such hearings in person and by her attorneys, Roland J. Steinle, Sr., and Gregory Gramling, Jr. On July 20, 1965, the condemnation commission filed its award.
The expressway commission, on August 9, 1965, appealed from the award of the condemnation commission to the circuit court, pursuant to sec. 32.05 (10), Stats. A copy of the notice of appeal was delivered to Attorneys Steinle and Gramling, and receipt was acknowledged on the original by the following notation:
"Copy Rec'd Aug 19 1965 Roland J. Steinle, Sr. and Gregory Gramling, Jr. Attys. for Myrtle Fontaine by Gregory Gramling, Jr."The notice of appeal was not served on Myrtle Fontaine, either personally or by certified mail.
The sixty-day period for appeal from an award of the condemnation commission expired on September 18, 1965. On September 28, 1965, Attorneys, Steinle and Gramling filed a notice of special appearance, and on October 1, 1965, moved to dismiss the appeal for lack of jurisdiction over the person of Myrtle Fontaine. After a hearing on the matter, the circuit court dismissed the appeal; from that order dated November 12, 1965, the expressway commission appeals.
Statutes Involved.
262.06 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 262.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:
"(1) NATURAL PERSON. Except as provided in sub. (2), upon a natural person:
". . .
"(d) In any case, by serving the summons, in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant."
"269.37 Service on attorney; when service not required. When a party to an action or proceeding shall have appeared by an attorney the service of papers shall be made upon the attorney. When a defendant shall not have appeared in person or by attorney service of notice or papers in the ordinary proceedings in an action need not be made upon him unless he be imprisoned for want of bail."
We must determine whether the following legend written on the notice of appeal was sufficient to give the circuit court jurisdiction over Myrtle Fontaine even though she was not otherwise served with process:
"Copy Rec'd Aug 19 1965 Roland J. Steinle, Sr. and Gregory Gramling, Jr. Attys. for Myrtle Fontaine by Gregory Gramling, Jr." The appellant urges that sec. 269.37, Stats., is applicable and that service on the attorneys was sufficient since the latter had previously appeared on behalf of Mrs. Fontaine. There is a flaw in this argument: Sec. 269.37 applies only when the attorney has appeared for a party in an "action or proceeding." The matter in which counsel had appeared before the condemnation commission was not such an "action or proceeding;" it was an administrative hearing. The appeal from the condemnation commission's award to the circuit court is an "action" pursuant to sec. 32.05 (10) (a), which provides as follows:"The clerk shall thereupon enter the appeal as an action pending in said court It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein . . . ."
Sec. 269.37, Stats., is a part of Title XXV; it applies only to an "action or proceeding," and that means a judicial action or proceeding. Sec. 260.01. We therefore conclude that sec. 269.37 could have no application to the hearing which was held by the condemnation commission under ch. 32. That the hearing before the condemnation commission was administrative and not judicial is clear from the following decisions: Millard v. Columbia County Highway Comm. (1964), 25 Wis.2d 425, 428, 130 N.W.2d 861; State ex rel. Milwaukee v. Circuit Court (1958), 3 Wis.2d 439, 446, 88 N.W.2d 339; Madison v. Tiedeman (1957), 1 Wis.2d 136, 142, 83 N.W.2d 694; Klump v. Cybulski (1957), 274 Wis. 604, 614, 81 N.W.2d 42; Borgnis v. Falk Co. (1911), 147 Wis. 327, 358, 133 N.W. 209.
The fact that Attorneys Steinle and Gramling appeared before the condemnation commission did not, therefore, enable the expressway commission to effect service upon such counsel under the authority of sec. 269.37, Stats. However, the existence of such prior representation can be a factor in determining whether an agency had been created which enabled her attorneys to accept process under sec. 262.06 (1) (d).
When an attorney-at-law formally acknowledges the receipt of a document as an attorney on behalf of a client, it may be presumed (in the absence of contradiction) that he was authorized by the client to accept it. In the instant case, no evidence whatsoever was offered by Messrs. Steinle and Gramling or by Mrs. Fontaine to demonstrate that the attorneys did not have authority to act as her agent. The fact that the attorneys had represented Mrs. Fontaine in the administrative hearing previously held by the condemnation commission lends additional support to the prima facie case of agency which arose from the written acknowledgment of counsel on the process papers.
We recently considered a related problem in Howard v. Preston (1966), 30 Wis.2d 663, 142 N.W.2d 178. In that case there was an acceptance of a document by Mr. Preston, an attorney-at-law, who signed on behalf of his wife with the following language: "Copy received, Michael D. Preston and Dorothy Preston by M.D. Preston, husband."
The Preston Case is distinguishable from the case at bar because in the present matter the appearance was made by attorneys in their capacity as attorneys. In the Preston Case, Mr. Preston's receipt of delivery was expressly asserted to be in the capacity of a husband. There is no presumption that when a husband receives process in his office he has authority to accept it for his wife. However, when an attorney acknowledges receipt of delivery as an attorney on behalf of a client, the legend itself raises a prima facie case of valid service. If there were in fact no authority, proof thereof must be offered. Mr. Preston acknowledged the receipt of process for his wife as a "husband" but subsequently claimed that he had possessed no authority from his wife. Messrs. Steinle and Gramling at no time denied that they represented Mrs. Fontaine; they challenged only the sufficiency of the service as a matter of law.
We conclude that in the absence of proof to the contrary the acknowledgment made by Mrs. Fontaine's attorneys' was sufficient to give the circuit court jurisdiction over her under the agency provision of sec. 262.06 (1) (d), Stats.
By the Court. — Order reversed, and cause remanded for further proceedings.