Opinion
February 8, 1951 —
March 6, 1951.
APPEAL from an order of the circuit court for Milwaukee county: WALTER SCHINZ, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the brief of Brennan Brennan of Milwaukee, and for the respondent on the brief of Shaw, Muskat Paulsen, attorneys, and F. H. Prosser of counsel, all of Milwaukee.
The action was begun on August 2, 1950. The order from which the appeal is taken was entered September 22, 1950. The material facts in this appeal are as follows:
Defendant Jack Matthew did business in premises which he rented from defendant, 535 North Water Street Corporation, in the city of Milwaukee. On or about April 12, 1949, the plaintiff called there for business reasons and was injured in the elevator. About June 1, 1950, Matthew moved to Chicago, Illinois. Approximately two months later plaintiff commenced this action to recover damages for the injuries. His complaint alleges that he is unable to serve Matthew with a summons in the state of Wisconsin and that Matthew moved to Illinois to evade such service. Personal service of the summons and complaint was made on the defendant corporation and service by publication was made on Matthew. Matthew then appeared specially and moved to set aside the service of the summons and dismiss the action as against him on the ground that he was a resident of Illinois and was not served with process within the state of Wisconsin, and the court has no jurisdiction over him. His supporting affidavit alleges that he is a resident of Illinois, not of Wisconsin, and is engaged in business there, and his move to Illinois was not connected with the plaintiff's accident or his suit. It is not alleged anywhere that Matthew has property of any kind in Wisconsin. The trial court sustained Matthew's special appearance and entered an order which vacated and set aside the attempted service of summons upon him and dismissed the action as to him. Plaintiff appeals.
Plaintiff relies on sec. 262.12, Stats., which, in its material parts, recites:
" Publication or service outside state, when permitted. When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases:
"(1) When such defendant is a nonresident of this state or his residence is unknown, or is a foreign corporation, and the defendant has property within the state, or the cause of action arose therein, and the court has jurisdiction of the subject of the action, whether the action be founded on contract or tort."
The defendant Matthew undoubtedly is a necessary or proper party to a cause of action which arose within the state and over which the court has jurisdiction. He is a nonresident and cannot be served in Wisconsin. Sec. 262.12 (1), Stats., authorizes service by publication in such cases, yet in so far as the statute attempts to gain jurisdiction by such service of nonresident defendants in behalf of plaintiffs who are seeking money judgments (judgments in personam) it is void because in conflict with the Fourteenth amendment of the United States constitution. Pennoyer v. Neff (1877), 95 U.S. 714, 24 L. Ed. 565. This seems so well established that there is little need for other citations or argument. In Witt v. Meyer (1887), 69 Wis. 595, 598, 35 N.W. 25, while dismissing an action on other grounds, we said:
"There is another objection to this proceeding, to which we call the attention of the attorneys of the plaintiff for their consideration: The affidavit sets up a cause of action in tort, arising in this state, and alleges the nonresidence of the defendant, and perhaps comes within the letter of the statute. Sub. 1, sec. 2639, R. S. We have however very grave doubts whether a judgment rendered against the defendant in such an action would bind his person or property. H it would not, it would be improper to permit the party to take judgment therein."
In Maxcy v. McCord (1904), 120 Wis. 571, 572, 98 N.W. 529, 98 N.W. 923, arising under sec. 2639, Stats., we said:
"Appellant insists that, having been served with process only outside its territorial jurisdiction, the court had no jurisdiction of his person to enable it to render a money judgment against him for costs. This is undoubtedly correct."
The parts of the old sec. 2639, Stats., which were pertinent in those cases are the equivalent of the portion of the present sec. 262.12, which we have already quoted but appellant suggests that the revision of the statute has changed the law because, in the opinion in State ex rel. Ralph Lumber Co. v. Kleczka (1940), 234 Wis. 7, 12, 290 N.W. 142, we said: "It should be noted that the old practice as provided in secs. 262.12 and 262.13 of the statutes of 1929 and former years is no longer applicable." The "old practice" referred to was the practice of procuring an order directing publication, which is no longer necessary. The quotation has no applicability to the question now before us and does not affect the older decisions which recognized the principle that a state court obtains no jurisdiction in personam over a defendant who is not served with process within the state and who enters no general appearance. As recently as in Schultz v. Schultz (1949), 256 Wis. 139, 40 N.W.2d 515, in considering a judgment entered against nonresident defendants upon whom the summons and complaint had been served in California and who did not appear in the action, we said, page 141, "If the judgment is in personam, it must be held invalid because no jurisdiction was obtained over the appellants."
No relief is sought in the present action other than in personam. Constructive service of process beyond the boundaries of the state is insufficient to give our courts jurisdiction over the person of the nonresident defendant, and a judgment rendered against him, so served, on this complaint would be void for lack of due process of law. The learned trial court correctly vacated the service and dismissed the action against him.
By the Court. — Order affirmed.