#### Ely vs. Tallman.

Where the record of an action shows that a specific mode was adopted to acquire jurisdiction over the person of one of the defendants, which mode was insufficient to confer jurisdiction over him, it will not be presumed that any other mode of service was resorted to, or that jurisdiction was acquired in any other way, unless there is something further in the record on which to base such presumption.

But where there is a subsequent entry showing the appearance of an attorney for some of the defendants, which appearance may have been for the defendant not served, it will be presumed in favor of the judgment of a superior court, drawn collaterally in question, that such appearance was for the defendant over whom it was yet necessary for the court to get jurisdiction in order to authorize its judgment.

The refusal of an instruction not warranted by the evidence, cannot be assigned ■ for error.

ERROR to tbe Circuit Court for *Bode*County.

Ejectment. Tbe case was once before in tbis court, and is reported, 6 Wis., 244. Tbe plaintiff claimed under one Rague, wbo deduced bis title through one Alden. Tbe defendant claimed title through a sale of tbe land upon a foreclosure of a mortgage which was executed by Alden, while he owned the land, to one Fitch. The case turned in this court upon the question, whether Rague had been made a *party*to the action for the foreclosure of the mortgage, so that the decree and sale would cut off his title.

The action for foreclosure was commenced by Fitch in the *29Rock circuit court, May 30th, 1851, and the bill alleged that Rague (against whom, as one of the defendants, a was prayed) resided in the city of Milwaukee. The subpce-na in the case was issued to the sheriff of Rock county, who returned it June 12th, 1851, “served” as to Alden, the mortgagor, and wife, and “ not found” as to Rague and several other defendants. Steps were thereupon taken to bring Rague and the other defendants not served, into court by publication, as in the case of non-resident defendants; and on the 7th of April, 1852, the usual order *pro confesso*was entered against Rague and the other defendants against whom publication had been made; which order recited that no appearance, plea, answer or demurrer to said bill had been made, filed or served by either of said defendants. The order of publication, and the order *pro*confesso, may be found recited at length in 6 Wis., 245-6. But the order of publication, though made July 7th, 1851, was not filed or entered upon the order book of the clerk until the 7th of April, 1852, and there was the following indorsement upon it: “Motion to file *nunc pro tunc*denied, and the defendant’s solicitor consented to the entry of the order in open court, and thereupon said order is entered by consent, April 7th, 1852.” “ Filed April 7th, 1852.” The bill had been taken as confessed against the mortgagor and wife, September 22d, 1851. On the 2d of October, 1852, a decree of foreclosure and sale was entered, which commences with the following recital: “This cause came on to be heard upon the bill of complaint taken as confessed against all the defendants in this cause, and was argued by counsel, and thereupon it was decreed, &c.”

Under this decree the land in dispute was sold to W. M. Tallman, under whom the defendant, *W. H.*Tollman, claims, and the sale was confirmed. The plaintiff, Ely, objected to the reading in evidence of the record of the foreclosure suit, but the objection was overruled. The defendant .produced also the journal of the Rock circuit court for the March term, 1852, and read in evidence the following entry of proceedings had therein on the 15th of March: “ Charles D. Fitch vs. James Gr. Alden et al. Foreclosure. Motion for *30leave to file an order of publication *nunc pro tunc.*On hearing Tallman for and Niel against said motion, tbe court took time to consider its opinion;” and tbe following entry of tbe 7tb of April, 1852 : “Charles D. Fitch vs. James D. Alden et al. In chancery. Motion for leave to file and enter order of publication *nunc pro tunc.*On bearing Tallman for said motion and Niel against tbe same, ordered that said motion be denied.” The defendant also called as a witness W. M. Tallman, who testified that be was one of tbe solicitors of Fitch in tbe foreclosure suit; that Taylor & Niel, who were attorneys at law and partners, appeared for Rague on tbe 7th of April, 1852, and opposed tbe motion to file tbe order of publication *nunc pro tunc,*and tbe motion was denied; that Niel then consulted Taylor and stated to tbe court that they bad consented that if witness would not take tbe decree till tbe fall term, witness could file tbe order of publication; that tbe memorandum indorsed on tbe order of publication is in tbe witness’s bandwriting; and that when tbe decree was taken, Niel & Taylor were both in court and consented to tbe decree. To tbe introduction of this oral evidence, and to tbe reading of tbe entries from tbe journal, *Ely*objected and excepted. Verdict and judgment for tbe defendant.

*George B. Ely,*plaintiff in error,

in person, contended that tbe circuit court erred in admitting parol evidence of tbe appearance of Rague by counsel in tbe foreclosure suit, such appearance not being shown by tbe record, citing 1 Phillips’ Ev. (6th. Am. Ed.), 425; *Bayles vs. Briggs,*4 Met., 421; *Kendall vs. Powers,*id., *553; Noyes vs. Butler,*6 Barb. (S. 0.), 613; *Wilson vs. Greathouse,*1 Scam., 174; *Lyle vs. Bradford,*7 Mon., 114; *Lessee of James vs. Etoolcey,*1 Wash. C. C. R., 330; *Yowng vs.*Thompson, 14 Ill., 380; *Barker vs. Ma-dure,*2 Blackfl, 14; *Manny vs. Harris,*2 Johns., 24; *Sheldon vs. Frink,*12 Pick., *568*; *Taylor vs. Henry,*2 id., 402; *Brush vs. Taggart,*7 Johns., 19; *Foster vs. Trull,*12 id., 456; *Jenner vs. Joliffe,*6 id., 9 ; *Sherman vs. Taiman,*2 Root, 140; 2 Fairf, 247; 3 N. H., 309; 9 Conn., 476; 3 Ham., 271; 4 Greenl, 44. 2. That when tbe record of a court of general jurisdiction is brought in question collaterally, jurisdiction of a defendant against whom a decree is entered *31*pro confesso,*will not be presumed. The jurisdiction of such a court oyer the subject matter will be presumed, but its risdiction of the person must affirmatively appear, and in such a case can appear only by the return to the summons or subpoena, showing due service thereof, where the party is entitled to such service. *Denning vs. Corwin,*11 Wend., 647; Opinion of BeoksoN, J., in *Mart vs. Seixas,*21 Wend., 40; *Harris vs. Hardeman,*14 How. (IT. S.), 338; 2 Tidd’s Pr., 678, 927; *Bliss vs. Wilson,*4 Blackf., 169; 2 id., 11, n. 2; 4 id., 2; 5 id., 30; 6 id., 331; *Nadenbush vs.*Lane, 4 Randolph (Va.), 413; *Prentiss vs. Méllen,*1 Sm. & M., 521; 14 id., 77; 3 Leigh, 270; 6 How. (Miss.), 43 ; 5 id., 295; 1 Scam., 127, 174, 239; 13 Ohio, 219; 16 id., 271. 3. The entries on the journal of the court, on the motion to file the order of publication *nunc pro*tunc, do not show an appearance for Bague. *Moss vs. Moss,*4 Hen. & Mun., 293. It must be taken to have been only for the defendants who were served. 1 Scam., 45; 14 Sm. & M., 77 ; *Violet vs. Waters,*1 J. J. Marsh., 303 ; *Harris vs. Hardeman,*14 How. (IT. S.), 336; 3 Zab. (N. J.), 113; 7 Mon., 114; 6 id., 205; 16 Ohio, 271; 6 Pick., 233, 245; 2 Bibb, 388; 4 id., 415; 5 Humph., 386; 1 Ark., 497; 2 id., 1; 6 How. (Miss.), 43; 4 B. Mon., 568; 4 Wis., 806; 9 id., 328. And the appearance, in whosesoever behalf made, was in effect for the purpose of objecting to the jurisdiction, and therefore did not confer jurisdiction. The order taking the bill as confessed, which was filed on the same day, recites that “ no *appearance,*plea, &c., to said bill had been made by or on the part of either of said defendants” (i. e., Bague and others not residents of Bock county.) The decree relates back to this order and recites that “ the cause came on to be heard upon the bill taken as confessed against all the defendants.”

*J. A. Sleeper,*for the defendant in error:

Parol evidence was admissible to show an actual appearance by Bague in the foreclosure suit. *Brewer vs. Holmes,*1 Met., 288 ; *Noyes vs. Butler, 6*Barb., 613; *Hart vs. Seixas,*21 Wend., 40; *Foot vs. Stevens,*17 id., 483; *Watson vs. Spence,*20 id., 260; *Vorhees vs. Bank of H. S.,*10 Peters, 449; *Grignon’s Lessee vs. Astor,*2 How. (IT. S.), 319; *Pea-**32*°00^ vs'*^ ®aun<^ers) ^2; *Brown vs. Wood,*17 Mass., 68 ; S., 1819, cbap. 81, sec. 18. 2. There is nothing in tbe record of that suit to sbow that service was not made upon Rague; and it is to *\>e presumed*that tbe circuit court bad acquired jurisdiction.in some way over all tbe defendants before it proceeded to a final decree against them all, when the record does not clearly sbow tbe contrary. *Voorhees vs. Bank of U. 8., supra-, Falkner vs. Build,*10 Wis., 568 ; *Tail-man vs. McCarty,*11 id., 101. 3. Tbe record shows that there was an appearance by a solicitor for tbe defendants in that suit, and this must be deemed an appearance for them all, unless tbe record shows that it was only for a part. *Henderson vs. Hamer,*5 How. (Miss.), 525; *Jones vs. Hunter, 4 id.,*312; *Young vs. Rankin,*id., 27; *McCullough vs. Cuetner,*1 Bin., 211; *Hills vs. Ross,*3 Dali., 331.

May 15.

*By the Court,*

Paine, J.

This case has once been before this court, and is reported in 6 Wis., 211. After the decision there made, a motion for rehearing was argued, and overruled for tbe reason that it was conceded that the decision was correct upon one ground, and therefore tbe court would not re-examine tbe others, either to “qualify or affirm ” its previous opinion. 8 Wis., 218. Since then there has been another trial, in which the defendant had a verdict and judgment, which is now brought here by a writ of error.

The principal question in the case is as to tbe admissibility and effect of the record of the foreclosure suit, under tbe sale in which tbe defendant claimed title. The plaintiff bad acquired tbe title of Rague, if be bad any; and he had, unless it was cut off by tbe foreclosure suit. This depends upon the question whether it sufficiently appears, or is to be presumed, that the court had jurisdiction over bis person.

Upon this question we deem it unnecessary to discuss at length the various positions taken by counsel. We have very fully considered the subject in the cases of *Rape vs. Heaton,*9 Wis., 328, and *Falkner vs. Guild*[10 Wis., 563], and some other cases recently decided. And we think it follows from tbe principles we there sustained, that where tbe record discloses a particular mode adopted to acquire *33jurisdiction over tbe person of a defendant, if that is insufficient to confer jurisdiction, it will not be presumed that other mode was adopted, or that jurisdiction was acquired in any other way, unless there is something further in the record on which to base such presumption. It may be conceded that where the record is silent as to the mode of acquiring jurisdiction, it will be presumed. But where the record shows the mode resorted to, we know of nothing, either in authority or reason, that will warrant the presumption that another mode was resorted to. That would be presuming against the plain implication of the record. If, therefore, the record offered in this case showed nothing further on this point than the mode in which it was attempted to serve Bague with process, we think it would appear affirmatively that no jurisdiction was acquired over him. The complaint averred that he resided in Milwaukee county, yet the record shows that he was served only by publication in Bock county, upon the return of the subpoena by the sheriff of that county “not found” as to him, without any process being sent to Milwaukee county, where he resided. There was no authority to serve the process on him by publication in that way. And if that were all that appeared on the record we might be compelled to hold that his right of redemption was not cut off, and that it now belongs to the plaintiff.

But it is undoubtedly true that reasonable presumptions are to be indulged in, not contradictory to the record, to sustain the judgments of superior courts. And although legal service of process was not made on a defendant, yet if there is anything in the record fairly warranting the presumption that he appeared and thus conferred jurisdiction over his person, then this presumption should be indulged in, until the contrary is shown. We think there was something of this kind in this record. The entries in the journal by the clerk, which were offered in evidence, show that an attorney appeared in behalf of some of the defendants and opposed the motion for leave to file the order of publication *nunc 'pro tunc.*For aught that appears on the record, this attorney may as well have appeared for the defendant Bague as for any other defendant. And where the record shows *34a mode of service not sufficient to confer jurisdiction over a of tbe defendants, jet afterwards shows an appearance for some of the defendants, which may have been for them, it -will be presumed in favor of the action of a superior court, where it is brought collaterally in question, in the absence of anything to the contrary, that the appearance was for those defendants as to whom it was yet necessary for the court to acquire jurisdiction in order to authorize the judgment. We think this is going no farther than reason, and not so far as many of the authorities would warrant.

Having come to this conclusion, it becomes unnecessary for us to pass upon the question whether the parol evidence offered in support of the record, to show that Bague did appear by attorney, was properly admitted or not. This court in its first decision, before alluded to, held it admissible. But the grounds for its decision on the motion for a re-hearing would seem to indicate that the questions not passed upon in deciding that motion were intended to be in some measure left open. But it is unnecessary for us to re-examine them here; for as we have come to the conclusion that in view of the entries on the record itself the presumption was that the attorney appearing against the motion appeared for Bague, it follows that the record was sufficient on its face to sustain itself, and that no parol evidence to show that Bague appeared was necessary, until the plaintiff had first offered evidence that he did not appear. We shall therefore not pass upon its admissibility, and shall remark upon it no further than to say that it fully illustrates the reasonableness of the presumption on which we have based our decision. For notwithstanding there was no legal service of process on Bague, this evidence shows that he did appear by attorney, and thus fully submitted himself to the jurisdiction of the court.

The attorney for the plaintiff requested the court to instruct the jury “that if they found that Bague was not served with process, and that there was no appearance for him in fact, they should find for the plaintiff” This, as applicable to the question of jurisdiction, we think is a correct proposition of law, and should have been given to the *35jury if there was evidence warranting tbe court in submitting it to them. But there was not. Tbe presumption tbe entries in tbe record was, that Hague appeared. Tbe plaintiff offered no evidence to sbow that be did not appear. And even tbougb tbe jury disbelieved tbe parol evidence that be did appear, that would have left the case with tbe presumption, and there was nothing upon which tbe jury would have been authorized to find that be did not appear. Tbe instruction, therefore, was not warranted by tbe evidence.

Tbe decision of these questions necessarily disposes of tbe case, and it is unnecessary to say anything upon other points discussed.

Tbe judgment is affirmed, with costs.