#### Driscoll, Appellant, vs. Tillman, imp., Respondent.

*February 16*

March *13, 1917.*

*Appearance, general or special? Petition to vacate judgment for lacle of jurisdiction: Immaterial allegations: Laches.*

• 1. Whether the appearance of a party for the purpose of making a motion in an action is a general or a special appearance does not necessarily depend upon the designation given it, hut is to he determined, in case of doubt or dispute, from the nature and object of the appearance and the issues necessarily raised and litigated thereby.

2. If an appearance is for the sole purpose of moving to vacate an order or judgment for lack of jurisdiction because of no service of process on the appearing party, the appearance is special, *246whether so designated or not; but if he asks for relief which can be granted only by a court having jurisdiction of his person, the appearance will be held to be general though denominated as special.

3. Where a party appeared for the sole purpose of having a judgment vacated so far as it affected his property on the ground that he was. not served in the action, immaterial allegations in his petition showing how he was damaged thereby should not be held to make his appearance a general one, especially where the issue claimed to be raised by such immaterial allegations was not litigated and did not enter into the court’s disposition of the case.

4. Where a party asking that a judgment obtained against him without jurisdiction of his person be set aside stands purely on his legal right, mere delay or acquiescence after discovery of the existence of the judgment will not bar the remedy unless it continued so long as to defeat the right itself.

5. A petition in the action in which the judgment was rendered is a proper remedy in such a case.

Appeal from an order of tbe circuit court for Milwaukee county: Oscae, M. Feitz, Circuit Judge.

*Affirmed.*

September 25, 1909, a deficiency judgment was entered against tbe defendant *Glemens W. Tillman*in tbis action foreclosing a mortgage on land previously conveyed-to bim by a deed reciting that be assumed and agreed to pay tbe mortgage! The, defendant *Tillman*was not served witb either summons or complaint and made no appearance. Sometime in March, 1912, be first learned of tbe existence of tbe deficiency judgment, and on February 10, 1916, be obtained an order to show cause why tbe deficiency judgment should be held to be a lien upon lands owned by bim and not embraced'in tbe foreclosure action. Tbe amended petition for tbe order alleged that tbe mortgaged premises were sold at tbe foreclosure sale for an inadequate price and that bad tbe petitioner known of tbe sale be could have protected himself.

Tbe circuit court found that no service of tbe summons and complaint was made upon *Glemens W.*Tillman; and *247that he was not guilty of such laches as to bar him from the relief asked. It held that he had made no general appearance in the action; and ordered the deficiency judgment to he set aside as to him and declared it to be no lien upon any premises owned by him. Erom such order, the plaintiff appealed.

For the appellant there was a brief by *Percies, Sirouse & Garter*of Milwaukee, and oral argument by *Alex. M. Sirouse.*

*Oscar W. Kreutzer,*attorney, and *James D. Shaw,*of counsel, both of Milwaukee, for the respondent.

Vinje, J.

The fact that no service was made on the petitioner is clearly shown by the proof and such finding is not questioned by the plaintiff. But he claims that the petitioner made a general appearance in the action when he came in and asked for the relief demanded in the petition as amended, based upon the allegations thereof to the effect that the mortgaged premises were sold for an inadequate price and that had petitioner known of the sale he could have protected himself. The answer did not admit these allegations and it contained a general denial, so the pleadings technically made the inadequacy of the price an issue. But no evidence was taken on the subject and no findings of the court made with reference thereto. The petitioner claims that the only purpose of the allegations as to the inadequacy of price was to allege damage to him by reason of the failure to serve him. Such allegations were needless, because if the judgment was entered against him without jurisdiction damage would be presumed from such wrongful entry and he would be entitled to have it set aside as to him. Since the petitioner appeared for the sole purpose of having the judgment vacated so far as it affected his property on the ground that he was not served in the action, it must be deemed that immaterial allegations showing how he was damaged thereby should not be held to constitute a general appearance, and especially so where the *248issue claimed, to be raised by sucb immaterial allegations was not litigated and did not enter into the trial court’s disposition of the case.

While it is true petitioner does not state that he makes a special appearance, that fact does not make the appearance general. The effect of the appearance cannot be controlled by the designation given it by the appearing party. In each case of doubt or dispute the court will look at the nature and object of the appearance and the issues necessarily raised and litigated thereby, and from such inspection determine whether the appearance is general or special. If the appearance is for the sole purpose of vacating an order or judgment for lack of jurisdiction because of no service of process on the party appearing, then the appearance is special whether so designated or not. *Blackburn v. Sweet,*38 Wis. 518; *Sanderson v. Ohio Cent. R. & R. Co.*61 Wis. 609, 21 N. W. 818; *Kingsley v. G. N. R. Co.*91 Wis. 380, 64 N. W. 1036; *Bestor v. Inter-Gounty Fair,*135 Wis. 339, 115 N. W. 809. The case of *Spencer v. Osberg,*152 Wis. 399, 140 N. W. 67, may seem to conflict with this statement. In that case, however, the motion to vacate the judgment did not state that it was because of lack of service on the moving party. There was merely a general motion to vacate the judgment without stating upon what ground. This fact was inadvertently omitted from a statement of the case. Eor that reason, and because the proof in fact showed service, the trial court denied the motion and this court sustained its action. On the other hand, if the moving party asks for any relief that can be granted only by a court having jurisdiction, then the.appearance will be held to be general though denominated as special. *Grantier v. Rosecrance,*27 Wis. 488; *Anderson v. Coburn,*27 Wis. 558; *Alderson v. White,*32 Wis. 308; *Bestor v. Inter-County Fair,*135 Wis. 339, 115 N. W. 809; *State ex rel. Engle v. Hilgendorf,*136 Wis. 21, 116 N. W. *249848; *Rix v. Sprague C. M. Co.*157 Wis. 572, 147 N. W. 1001.

Tbe circuit court properly beld tbat tbe petitioner was not, guilty of sucb laches as to bar him from tbe relief asked. It is true be waited about four years after be discovered tbe existence of tbe judgment and until tbe statutes of limitation barred plaintiff’s remedy against him personally before be applied to tbe court for relief. But be does not ask for relief on equitable grounds. If be did, another question would be presented. He stands purely on bis legal right to have a judgment obtained against him without jurisdiction of bis person set aside. In sucb cases mere delay or acquiescence will not bar' tbe remedy unless it has continued so long as to defeat tbe right itself. 5 Pom. Eq. Jur. (1 Eq. Rem.) § 24 and cases cited; *Pollard v. Wegener,*13 Wis. 569; *Godfrey v. Wright,*151 Wis. 372, 139 N. W. 193. Tbe eases of *Russell v. Fish,*149 Wis. 122, 135 N. W. 531; *Langlade R. Co. v. Magee,*156 Wis. 457, 145 N. W. 1101; and *Bur v. Bong,*159 Wis. 498, 150 N. W. 431, cited and relied upon by plaintiff’s counsel, related to the granting of relief on equitable grounds, and hence are not applicable to tbe case at bar.

Tbat a petition in tbe original action is a proper remedy was ruled in *Stein v. Benedict,*83 Wis. 603, 53 N. W. 891, and in *Jackson M. Co. v. Scott,*130 Wis. 267, 110 N. W. 184. No other claims of error are of sufficient merit to justify treatment in an opinion.

*By the Court.*— Order affirmed.