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Moe vs. Moe. (Three Appeals.)

cannot be taken as true against her; and she is entitled to the means of support and of carrying on the suit pending the trial and determination of the issues of fact.

LYON, J. I. The first motion for a change of the place of trial to Portage county should have been granted. The notice of motion contained a good demand for such change under the statute (R. S., ch. 123, sec. 4), and the affidavit of the plaintiff that the judge of the seventh circuit is prejudiced against her, is not sufficient to defeat the motion. Such affidavit may show that the action should not be tried in that circuit; and if it be renewed when the cause is sent to Portage county, the circuit judge will doubtless send the cause out of his circuit; but it does not show that the trial ought to be had in Milwaukee county. In that respect it is quite unlike the case of Couillard v. Johnson, 24 Wis., 533, where it was made to appear that the action ought to be tried in the county in which it was commenced. We hold that in this and similar cases, an affidavit of the prejudice of the judge of the circuit court for the county in which the defendant resides, is not, of itself, sufficient ground for denying a motion to change the place of trial to that county. The order of May 17, 1875, denying the plaintiff's motion to change the place of trial to Portage county, must be reversed, and the cause remanded with directions to the circuit court to grant such motion. The defendant must pay the costs of the appeal from the order of May 17; but no attorney's fees shall be taxed therein against him.

II. The defendant having obtained by his first appeal all that he seeks to obtain by his appeal from the order of May 26, the latter appeal is superfluous, and must be dismissed. Young v. Groner, 26 Wis., 205.

III. The demand that the place of trial be changed to Portage county was made under sec. 4, ch. 123, R. S., and did not operate as a stay of proceedings, as it would have done had

Likens vs. McCormick and another.

the summons been served in any other than Portage county. Laws of 1869, ch. 185 (Tay. Stats., 1423, § 5). No order was made staying proceedings in the action pending the motion. Under these circumstances it must be held, on the authority of Bonnell v. Gray, 36 Wis., 574, that pending such motion the court had jurisdiction of the action, and authority to make the order for the payment of temporary alimony and suit money. In making that order the court had before it only the complaint and petition. True, the answer had been served when the motion was determined and the order made; but it was not filed until June 4th, and was not before the court on the hearing of the motion.

Taking the facts stated in the petition as true, the allowance does not seem excessive. We must therefore affirm the order of April 20th. But the whole matter is under the control of the proper circuit court; the defendant is at liberty to apply to that court for a modification of the order; and the court may in its discretion allow, on the attorney's fees therein directed to be paid, any attorney's fees which shall be taxed against and paid by the defendant, on these appeals.

By the Court.-Order of March 17th reversed; that of April 20th, affirmed; and the appeal from the order of May 26th, dismissed.

LIKENS VS. MCCORMICK and another.

PRACTICE: OPENING JUDGMENT: SERVICE BY PUBLICATION. (1) Defect of jurisdiction waived by neglect of defendants to appeal from order to answer on vacating judgment. (2) Statute authorizing service by publication must be strictly followed. (3) When service by mailing summons and complaint invalid. (4) When personal service on one of two defendants without the state insufficient. (5) Defendants irregularly served may have default opened.

1. Defendants, appearing for that purpose only, moved to vacate a judgment

Likens vs. McCormick and another.

against them, on the ground that the court had not acquired jurisdiction of them. An order was thereupon made vacating the judgment, but setting a time for them to answer; and from this they took no appeal. Held, on plaintiff's appeal, that by such submission to the order, defendants waived the defect of jurisdiction; and the question presented here is not that of jurisdiction, but only whether the judgment was properly opened for irregularity.

2. Courts of record of this state, in actions upon contract, may obtain jurisdiction of a nonresident defendant, having property in this state, by service of summons by publication; but the statute providing for such service (R. S., ch. 124, sec. 10) must be strictly followed.

3. After the order of publication in this case, a copy of summons and complaint was mailed to defendants, by their firm name, giving the initials only of their Christian names, which were known to the plaintiff. Held, (1) That if a copy had been so directed and mailed to each of them, it would have been a doubtful service. Kellam v. Toms, 38 Wis., 592. (2) That the mailing of one copy to both could operate, at best, as service on one only, not affecting the other; and the uncertainty which, if either, might receive the copy so mailed, makes it prima facie void as to both.

4. A subsequent personal service on one of the defendants, without this state, with no attempt to serve the other, was not a sufficient compliance with the statute.

5. Judgment as upon default having been rendered against the defendants after the attempts at service above described, they were entitled to have it opened, for the irregularity.

APPEAL from the Circuit Court for Iowa County.

Action to recover a balance alleged to be due upon an open account from the defendants, C. H. and L. J. McCormick, residents of Illinois, to the plaintiff, who is a resident of this state. Service was attempted to be had upon defendants by publication, the facts concerning which appear in the opinion. Plaintiff having taken judgment by default, defendants subsequently appeared by attorney for the sole purpose of moving, upon affidavits and the papers on file, to set the judgment aside. The court made an order setting aside the judgment, and granting defendants leave to answer within thirty days. Plaintiff appealed from the entire order; but defendants did not appeal.

Likens vs. McCormick and another.

W. W. Likens, appellant, in person, argued that the summons was regularly served, all the provisions of the statute having been fully complied with. Tay. Stats., ch. 124, § 12. Even if there were defects in the service, defendants waived them by their appearance. The appearance was general. 14 Wis., 222; 17 id., 401; 32 id., 312; 4 id., 275; 11 id., 81; 26 id., 220; 27 id., 488, 564; C. C. Rules, 22; 15 How. Pr., 92; 9 id., 445; 19 id., 429; 32 id., 351; 6 Abb. Pr., 336; 3 Caines, 133; 1 Wend., 1; 2 Duer, 648; 48 Barb., 132; 1 Wait's Pr., 560. Such an appearance waives all irregularities in the summons and its service, and even the want of any service. 39 Barb., 140; 6 How. Pr., 308, 439; 5 id., 233; 10 N. Y. Leg. Obs., 158; Gra. Pr., 87, 123, 566-7; 7 Cow., 366; 18 Wis., 69; 26 id., 220.

Moses M. Strong, for respondents, contended that neither of the defendants had been served with process, and that the judgment set aside was void for want of jurisdiction over them. Weatherbee v. Weatherbee, 20 Wis., 499.

RYAN, C. J. The respondents appeared below specially for the purpose only of moving to vacate the judgment, evidently on the ground that the court had not acquired jurisdiction over them. The peculiarity of the case is, that, on this motion, the court below not only vacated the judgment, but set a time for the respondents to answer, and ordered the costs to abide the event of the cause; presumably assuming jurisdiction, and proceeding on the ground of irregularity. The respondents have not appealed from this part of the order, and must be taken as submitting to it. We think that the order, so submitted to, operates to cure all defect of jurisdiction. Ruthe v. R. R. Co., 37 Wis., 344, and cases in this court collected by DIXON, C. J., in a note to Heidenheim v. Sprague, 5 Wis., 259. Had the waiver of the jurisdictional defect been by voluntary appearance of the respondents, the question here would have been different. But the waiver rests

Likens vs. McCormick and another.

solely on their submission to the order appealed. The appeal is from the whole order, and if it were reversed, it would leave the court below without jurisdiction. Anderson v. Coburn, 27 Wis., 558, and other cases in this court. The question for us is therefore one of regularity, not of jurisdiction.

The appellant's affidavit on which the order of publication was made, gives the full Christian and surnames of the respondents, and states that they reside in Chicago. After the order of publication, a copy of the summons and complaint was mailed, directed to the respondents by the name of their firm as stated in the affidavit, giving the initials only of their Christian names. If copies had been separately so directed and mailed to each, it would have been a doubtful service. Kellam v. Toms, 38 Wis., 592. But the mailing of one copy to both could operate at best as service upon one only, not affecting the other. Blackburn v. Sweet, 38 Wis., 578. And the uncertainty which respondent, if either, might receive a copy so mailed to both, makes it prima facie void as to both. Afterwards there was personal service on one of the respondents in Chicago, but no apparent attempt to serve the other. So that there is a manifest failure to follow the statute. This mode of service has been sustained by this court. Jarvis v. Barrett, 14 Wis., 591. But the statute must be strictly followed. Anderson v. Coburn, supra. The judg ment was clearly irregular, in a point affecting the substantial rights of the respondents, and they were entitled to have it opened.

By the Court. The order of the court below is affirmed.

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