Summary
In Town of Washington v. Village of Cecil, 53 Wis.2d 710, 193 N.W.2d 674 (1972), the town sued to void its annexation to the village.
Summary of this case from Town of Wautoma v. City of WautomaOpinion
No. 168.
Argued January 3, 1972. —
Decided February 1, 1972.
APPEAL from an order and a judgment of the circuit court for Shawano county: ANDREW W. PARNELL, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Orville S. Luckenbach of Shawano.
For the respondent there was a brief by Aschenbrener Koenig and Gerald L. Koenig, all of Shawano, and oral argument by Gerald L. Koenig.
Facts.
On October 28, 1969, the village of Cecil annexed certain property located in the town of Washington. The town of Washington set out to contest the validity of the annexation. On December 22, 1969, a summons and complaint were given to a deputy sheriff of Shawano county for service upon the village of Cecil. Ascertaining that the village president was not available and that the village clerk was not at his usual place of employment or at his residence, the summons and complaint were served upon the wife of the village clerk at their residence. The village of Cecil moved to quash service of summons and complaint as not complying with sec. 262.06(4)(a) 4, Stats. On May 14, 1970, the trial court ruled that the attempted service upon the village was not in compliance with the statute. On July 16, 1970, an order was entered quashing the service and a judgment was entered dismissing the action. From that order and judgment, this appeal is taken.
Here service upon the village of Cecil was attempted by leaving a copy of the summons and complaint with the wife of the village clerk at their residence. If the village clerk had been the defendant, and could not be located, the statutes provide that a copy of the summons may be left at the defendant's usual place of abode in the presence of some competent member of the family. However, where the action is against a village as a municipal corporation, the statutes provide only that service must be made on "the president or clerk thereof" or "left in the office of such officer." This statute ". . . must be strictly complied with. . . failure to serve the summons in the manner prescribed by statute left the summons unserved and the attempted service was properly quashed." Even if the village secured actual notice by service upon the wife of an official, the service is invalid if not made in the manner required by the statute. On appeal, we are urged to consider the possibility that the village clerk's home was his office or that his wife may have been a deputy village clerk. The place and time to make such argument or establish such additional facts was in the trial court on the motion to quash. The trial court found: ". . . No testimony was offered or taken and it is doubted that any proofs would alter the factual situation . . . ." Failure to offer testimony or object to the trial court's statement constituted waiver. The trial court holding that the attempted service did not comply with the statute providing for service upon a village must be affirmed as entirely correct.
Sec. 262.06(1)(b), Stats.
Sec. 262.06(4)(a) 4, and 262.06(4)(b), Stats.
Westport v. Madison (1945), 247 Wis. 326, 327, 328, 19 N.W.2d 309 (holding attempted service properly quashed where copy of summons was left with the wife of the mayor).
See: Milwaukee County v. Schmidt, Garden Erikson (1967), 35 Wis.2d 33, 37, 150 N.W.2d 354.
". . . waiver arises where a party acquiesces in the statement of the court that no evidence is necessary on a certain point because no one questions its truth. . . ." 53 Am. Jur., Trial, pp. 93, 94, sec. 105.
By the Court. — Order and judgment affirmed.