Opinion
February 5, 1954 —
March 2, 1954.
APPEAL from an order of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Reversed.
The cause was submitted for the appellants on the brief of the Attorney General and E. Weston Wood, assistant attorney general.
Prosecution of the defendant Norman L. Pierce for violation of an ordinance of the city of Madison prohibiting the operation of a motor vehicle while under the influence of intoxicating liquor.
Such prosecution was instituted in the superior court of Dane county, and Pierce was adjudged guilty of such violation. The superior court thereupon required the defendant-respondent to surrender his motor-vehicle operator's license and forwarded it, together with a record of conviction, to the department, pursuant to sec. 85.08(24), Stats. The commissioner of the department then revoked the operator's license of the defendant-respondent, pursuant to sec. 85.08(25). The defendant-respondent appealed to the circuit court for Dane county from the judgment of the superior court.
In the circuit court action the defendant-respondent obtained an order to show cause, dated September 24, 1953, ordering the department to show cause why the driver's license of the defendant-respondent should not be reissued during the pendency of the appeal to circuit court. This order to show cause was served upon the department but there has been no summons or other process served upon the department or the commissioner or agent thereof or upon any agent of the state.
Upon the return of the order to show cause on September 25, 1953, a special appearance was entered for the department for the sole purpose of objecting to the jurisdiction of the court and moving to set aside the service of the order to show cause and to dismiss the proceeding as to the department for the reason that the department was not a party to the action and there had been no service of process upon the department and, therefore, the court had acquired no jurisdiction over the department.
The circuit court noted the special appearance for the department but issued an order which was entered October 13, 1953, ordering the department to reissue to the defendant-respondent his operator's license during the pendency of the appeal to the circuit court from the judgment of conviction of the superior court.
From such order the state of Wisconsin and Larson, as commissioner of the motor vehicle department, have appealed.
Inasmuch as this cause was submitted upon the brief of the appellants, and the defendant-respondent Pierce is in default and his counsel has advised us that he does not intend to file a brief in Pierce's behalf, we could in our discretion reverse the judgment below as of course without opinion under the provisions of Supreme Court Rule 32 (sec. 251.32, Stats.). However, we have concluded that the issue raised on this appeal is one of considerable public concern because there is presented the question of how the jurisdiction of the circuit court may be invoked against a person not originally a party to an action. Therefore, we have chosen not to invoke Rule 32, but to reverse on the merits and file this opinion stating the reason that we deem requires such result.
We hold that the service of the order to show cause did not and could not give the circuit court jurisdiction over either the state of Wisconsin or the commissioner of the motor vehicle department, and, therefore, the subsequent order requiring the department to reissue an operator's license to Pierce was a nullity in view of the fact that there was no general appearance by the state or the commissioner that had conferred jurisdiction on the circuit court as to them.
Sec. 262.01, Stats., provides:
"A civil action in a court of record shall be commenced by the service of a summons or an original writ. From the time of such service or the issuance of a provisional remedy the court shall have jurisdiction and have control of all subsequent proceedings."
This court in Eide v. Skerbeck (1943), 242 Wis. 474, 482, 8 N.W.2d 282, declared:
"Jurisdiction of the person can only be acquired by service of a summons in the manner prescribed for personal service. This is plain and fundamental, even where motion to make one a party or order to show cause why one should not be made a party is personally served. In re Citizens State Bank of Gillette, 207 Wis. 434, 241 N.W. 339; State ex rel. Ashley v. Circuit Court, 219 Wis. 38, 261 N.W. 737."
We deem that the foregoing quoted statement clearly declares the law applicable to the issue here presented.
By the Court. — Order reversed.