Opinion
April 11, 1967. —
May 9, 1967.
APPEAL from an order of the circuit court for Milwaukee county: MARVIN C. HOLZ, Circuit Judge. Affirmed.
For the appellants there were briefs by Niebler Herro, attorneys, and Chester J. Niebler of counsel, all of Milwaukee, and oral argument by Chester J. Niebler.
For the respondent there was a brief by Robert P. Russell, corporation counsel, and James J. Bonifas, assistant corporation counsel, and oral argument by Mr. Bonifas.
The issue in this case is narrow and has not heretofore been determined here in Wisconsin. The facts are not in dispute. The defendants-appellants are members of a partnership having its principal place of business in Illinois. March 18, 1965, the plaintiff-respondent caused a summons to be served in Chicago on Raymond W. Garbe, one of the partners. The other defendants were served by substitution at the business office. On the same day, Olin M. Schneider, one of the defendants, and a member of the partnership, directed a letter by certified mail, return receipt requested, to counsel for the plaintiff. The letter set forth the venue and title of the action, acknowledged service of the summons, and concluded by stating: ". . . we hereby serve upon you a demand for a copy of the complaint." April 2, 1965, a complaint, verified the same day, was served upon the defendants. Service was accomplished by personal service on eight of them; substituted service on four of them; and a not-found return as to five of them. July 1, 1966, the defendants moved to dismiss the action on its merits for two reasons, including the one presently before the court, viz., lack of jurisdiction.
The issue raised in this appeal is: Does the service of a summons without a copy of the verified complaint on a nonresident when followed by defendant's letter demanding a copy of the complaint and the subsequent service thereof, pursuant to such demand, confer personal jurisdiction over the defendant?
Sec. 262.12, Stats., provides as follows:
"262.12 Summons, what must accompany when served. (1) PERSONAL JURISDICTION . . .
"(b) When personal service is made without this state upon the defendant, a copy of the verified complaint shall accompany the summons."
"262.16 Raising objection to personal jurisdiction, general appearance. (1) GENERAL APPEARANCE. An appearance of a defendant who does not object to the jurisdiction of the court over his person is a general appearance and gives the court personal jurisdiction over him.
"(2) HOW AND WHEN OBJECTION SHALL BE MADE. An objection to the court's jurisdiction over the person is not waived because it is joined with other defenses or motions which, without such objection to jurisdiction, would constitute a general appearance. Such objection shall be raised as follows:
"(a) By motion when a defect is claimed in the service of the summons without a complaint; . . .
"(6) WAIVER OF OBJECTION TO LACK OF PERSONAL JURISDICTION. Except as provided in sub. (5), an objection to the jurisdiction of the court over the person is waived if not made as provided in this section."
The trial court correctly determined that had the defendants done nothing, the service of the summons alone would have been totally ineffective. Also, the trial court would have been compelled to grant defendant's motion had they proceeded as provided in sec. 262.16 (2) (a), Stats., instead of demanding a copy of the complaint prior to doing so.
Clearly and admittedly, a copy of the verified complaint did not accompany the summons. Equally self-evident is the fact that the defendants did not follow the procedure set forth in sec. 262.16 (2) (a), Stats., but on the contrary, chose to demand a copy of the complaint, which demand was recognized by the plaintiff by serving a copy of the verified complaint upon the defendants. No objection has been raised as to the method of the service of either the summons or the verified complaint.
The defendants contend that they have not made a general appearance and therefore can raise the issue of jurisdiction, citing McLaughlin v. Chicago, M., St. P. P. R. Co. (1964), 23 Wis.2d 592, 596, 127 N.W.2d 813, and several other authorities. In view of the specific language of the statutes involved, we do not deem the matter of whether or not the defendants made a general appearance to be a controlling factor.
The expression of legislative intent contained in sec. 262.01, Stats., directs that ch. 262 be liberally construed to the end that actions may be speedily and finally determined on their merits. Huck v. Chicago, St. P., M. O. R. Co. (1958), 4 Wis.2d 132, 90 N.W.2d 154.
The purpose of a summons is to give notice to the defendant that an action has been commenced against him. Hammond-Chandler Lumber Co. v. Industrial Comm. (1916), 163 Wis. 596, 158 N.W. 292; Westport v. Madison (1945), 247 Wis. 326, 328, 329, 19 N.W.2d 309; Rosenthal v. Rosenthal (1961), 12 Wis.2d 190, 195, 196, 107 N.W.2d 204; Mohr v. Manierre (1879), 101 U.S. 417, 25 L.Ed. 1052. Due process is satisfied by service in some manner reasonably calculated to give notice to defendant of the pendency of an action and to afford him a day in court. Mullane v. Central Hanover Trust Co. (1950), 339 U.S. 306, 70 Sup.Ct. 652, 94 L.Ed. 865. There can be no doubt that the defendants did obtain notice by service of the summons. However, the legislature has the right to determine the manner in which that notice shall be given and how objections to improper notice may be raised.
Therefore, the summons is the important document. Stewart v. Transcontinental Car Forwarding Co. (1938), 169 Misc. 427, 7 N.Y.Supp.2d 926. It has been held that the defendant did not waive his rights in demanding a complaint when he persistently and consistently expressly reserved all rights in his communications.
"The reservation of rights was continually made and the intention not to waive any rights as a matter of fact is clear throughout." Williams v. Hatcher (1913), 95 S.C. 49, 56, 78 S.E. 615, 617.
In the instant case, the letter stating a demand for the complaint reveals no such intention and, in fact, by the clear use of a formal caption indicating venue and title and language such as "we hereby serve upon you a demand for a copy of the complaint" clearly indicates that the defendants deem themselves active participants in the case.
Having reached the foregoing conclusion, it is not necessary to determine whether or not the provisions of sec. 262.12 (1) (b), Stats., are directory or mandatory.
Considering all of the facts and circumstances and the provisions of ch. 262, Stats., particularly in light of the legislative intent expressed in sec. 262.01, we conclude that the determination of the trial court was correct and that the defendants waived their right to object to the jurisdiction of the court.
By the Court. — Order affirmed.