
    Jilsun, Adm’r, vs. Stebbins, imp.
    Equity. (1) Discharge of land from lien of judgment.
    
    JURISDICTION. (2) Record evidence that court had jurisdiction of the judgment defendant.
    
    Evidence. (3) Declaration of plaintiff's intestate.
    
    1. Equity will not annul a judgment, or discharge from the lien thereof land of which the debtor died seized, on the ground that the execution issued thereon is without a seal, and is for a somewhat larger sum than that named in the judgment; nor on the ground that the judgment creditor knew of the debtor’s death, and failed to file any claim against Ids estate, and that the administrator has sold said land by order of the court.
    2. "Where the record of an action shows a written admission, by a defendant, of service upon him of a copy of the summons and complaint therein, this is sufficient evidence that the court had acquired jtirisdiction. Whether correct practice requires any other proof of service, is not here determined.
    8. In an action by an administrator to prevent the enforcement of a judgment against his intestate, evidence of declarations of the debtor in his lifetime as to payment of the judgment, is inadmissible.
    APPEAL from tbe Circuit Court for Kenosha County.
    On the 21st of April, I860, Stebbins recovered a judgment in said circuit court against Thomas D. Parsons and one Brown for $413.36. On the 15th of April, 1873, Parsons died intestate, and the present plaintiff was appointed administrator of his estate. The personal estate of the decedent being insufficient to pay the debts, etc., the administrator obtained leave to sell, and did sell, part of the real estate for that purpose; and the sale was confirmed. Some time afterwards, Steb-bins obtained leave from the court to issue an execution on his judgment, and the same was issued December 30, 1874, and placed in the hands of the sheriff January 6, 1875. The sheriff levied the execution upon lands which had been sold by the administrator, and advertised them for sale. Thereupon, on the 15th of February, 1875, this action was brought by the administrator against Stebbins and the sheriff, for relief against tbe execution and tbe judgment on wbicb it was founded.
    The complaint, in addition to tbe facts above stated, alleges, 1. That Stebbins and said Parsons bad continuously resided in tbe city of Kenosha from tbe date of said judgment to tbe death of Parsons, and Stebbms bad since resided there; that tbe latter was “ a sharp, active business man,” and for two years of said time bad been sheriff of tbe county; that during all that time Parsons bad ample real and personal estate to pay said judgment, and plaintiff alleges, upon information and belief, that tbe same bad been paid; that Stebbins bad full knowledge, at the several times thereof, of tbe death of Parsons, tbe granting of letters of administration upon bis estate, tbe order for presentation of claims, and tbe advertisement and sale of tbe real property for payment of tbe debts; and that Brown, tbe other judgment debtor, was nonresident and bankrupt. 2. That there was unsold property of tbe estate, liable to sale, sufficient, or nearly so, to satisfy said judgment, and not levied upon for that purpose, wbicb plaintiff claims should be first sold and applied on tbe judgment, if any sale thereon be permitted. 3. That said pretended judgment is void for want of jurisdiction in tbe court to render it, because there was no due service upon Parsons of tbe summons and complaint, or proof thereof. Prayer, that said judgment be “ declared void, annulled and discharged; ” that tbe lands sold by tbe administrator be discharged from such judgment; that defendants be enjoined from selling in tbe mean time; and for general relief.
    Tbe answer of Stebbms alleges, in substance, that tbe judgment in question was founded upon a valid claim, subsisting at tbe time of its rendition, against the persons therein named as defendants; and that it was duly obtained and docketed, and bad never been appealed from or paid.
    At tbe bearing, a motion by tbe plaintiff that tbe issue as to payment of tbe judgment be tried by a jury, was denied. As to tliis issue plaintiff offered to prove, by a witness tben on tlie stand, and by other witnesses, tbat in 1872, in conversations between sucb witnesses and plaintiff’s decedent, Parsons, relative to tbe sale of some property of tbe latter, be had stated tbat tbe judgment here in question bad been paid. This testimony was rejected. Tbe other testimony bearing upon tbe issue of payment need not be stated. Tbe record in tbe suit of Stebbins v. Parsons and Brown was put in evidence, and tbe only proof therein of tbe service upon Parsons of tbe summons and complaint was a written admission of sucb service purporting to be signed by him. One of tbe attorneys for Stebbins in that action, having been called as a witness by tbe plaintiff, testified on cross-examination (against plaintiff’s objection), tbat be was acquainted with Parsons’ bandwriting; tbat be should think this was bis signature; and tbat in fact tbe witness saw him write it.
    Tbe execution which Stebbins bad caused to be issued upon bis judgment December 20,1874, was put in evidence, and appears (as is stated in tbe printed case) to have been “ issued in form under tbe first clause of sec. 8, ch. 134, E. S., and without the seal of tbe court, as claimed by tbe plaintiff, for tbe sum of $423.36, besides interest, being ten dollars in excess of said judgment.” Tbe defendant sheriff, being called by tbe plaintiff as a witness, was asked whether, when be received tbe execution, there was any seal upon it; but tbe question was objected to and ruled out.
    Tbe court found tbat tbe summons and complaint in the action against Parsons were duly served on him, so tbat tbe court acquired jurisdiction of bis person; tbat tbe judgment in question was duly rendered, and bad never been paid, nor any portion thereof, but was a valid subsisting lien upon any property, not exempt from execution, of which Parsons died seized; that be was seized at bis death of certain real estate, as alleged in tbe complaint; and that, before this action was brought, the- administrator bad sold certain of said real estate, as also in tbe complaint alleged. On these facts the court held that the plaintiff was not entitled to any part of the relief demanded, and it rendered judgment in defendant’s favor for costs, etc.; from which the plaintiff appealed.
    For the appellant, briefs were filed signed by F. S. Lovell, and the cause was argued orally by G. H. Wimsor:
    
    1. The judgment in question was void for want of personal service upon Parsons, or any proof of service, as required by circuit court rule 41. The statute requires the summons to be served, and returned with proof of service. It must be a personal service to entitle the clerk to enter judgment upon default. It must be made by delivering a copy to defendant personally. In case of admission other than to an officer, the proof of service must be by affidavit, stating the time and manner thereof. R. S., ch. 124, secs. 8, 9, 13. Rule 41 goes still farther, requiring the affidavit to state the particular place of service; that the person serving knew the person served to be the one mentioned and described in the summons as defendant therein; and whether a copy was left with as well as delivered to the defendant. This court has sustained these requirements to the letter. Moyer v. Cooh, 12 Wis., 235; Talbnadge v. Potter, id., 318; Sales v. Demis, 20 id., 302; Weatherbee v. Weatherbee, id., 499; Matteson v. Smith, 37 id., 333. In New York, where the statute is the same as ours, the decisions have been equally strict. Litch--fielcl v. Burwell, 5 How. Pr., 341; 2 Hill, 260; Howard’s Code (ed. of 1859), 173, 180; Read v. French, 28 N. Y., 285. The court also erred in admitting parol proof of the genuineness of Parsons’ signature to the admission of service. 2. The answer admits that the execution was for ten dollars in excess of the judgment, and contains no sufficient denial that it was without seal, which would render it void. 23 Wis., 506. 3. The declarations of Parsons in relation to the payment of this judgment were admissible as a part of the res gestm. 11 Pick., 308, 362; 17 id., 171; 1 Met., 242; 3 id., 199. 4. Equity will enjoin the enforcement of a void judgment, or tlie inequitable use of a valid one. 2 Story’s Eq. Jur., §§ 876, 885; 1 Am. Oh. Dig., 623; 3 Yerg., 336; 2 Hill, 215; Huebschman v. Baker, 7 Wis., 548; Trustees v. Hoessli, 13 id., 348; Merritt v. Baldwin, 6 id., 439. And there can be no laches against a void judgment, or one that has been paid.
    
      J. V. Quarles, for the respondent:
    1. The complaint shows no ground for equitable interference, because it avers neither fraud nor mistake in obtaining the judgment, nor does it show that any injustice will be done by its enforcement. 2 Story’s Eq. Jur., §§ 887, 898, and cases there cited; Stokes v. Knarr, 11 Wis., 389; Ableman v. Both, 12 id., 90; Merritt v. Baldwin, 6 id., 442. One who asks the aid of equity against a judgment at law, must show that he is in danger of. unjustly losing some substantial right, without his fault. Warden v. Supervisors, 14 Wis., 620; Meloy v. Dougherty, 16 id., 270; Mclndoe v. Hazelton, 19 id., 572; Crandall v. Bacon, 20 id., 639; Sauerhering v. Iron Ridge Co., 25 id., 459. One who seeks to enjoin the collection of a judgment must show that plaintiff had no cause of action. 2. If the judgment was irregular or unjust, the defendant therein should have appealed from it, or had it set aside; and equity always discountenances laches. Barber v. Bukeyser, 39 Wis., 595; Voorhees v. Bank of XT. S., 10 Pet., 473. All the relief here sought could have been obtained in the original action. 3. Personal service may be shown by the admission of the party served. Service may be waived by the adverse party by notice in writing, which waiver has the full effect of service. 4 Wait’s Pr., 623-4. When this course is resorted to, the genuineness of the signature ought to be made to appear. Parol proof was rightly received at the trial, to show that the signature was genuine, that fact not appearing from the record. Tollman v. Ely, 6 Wis., 260; Pollard v. Weg-ener, 13 id., 574. Jurisdiction is acquired by the fact of service, and not by the return of process, which may not be completed -until after judgment. Kneeland v. Cowles, 4 Oband., 48. The judgment cannot be impeached collaterally for any irregularity, or for any defect which does not render it absolutely void. Fallmer v. G'idid, 10 Wis., 564. Jurisdiction of the person must be presumed in support of the judgment of the circuit court, unless the absence of jurisdiction appears affirmatively from the record; and this is not such a case. Rape v. Heaton, 9 Wis., 843; Blodgett v. Hitt, 29 id., 179. The cases cited as to the reo[uisites of an affidavit of service made by a private person, are not in point; and the admission in Read v. French, 28 N. Y., 285, was defective in not specifying that the service was personal.
    
   Cole, J.

It appears to us that no good reason is shown for granting the relief ashed in this case. It is not claimed that there was any fraud practiced, or undue advantage taken, in obtaining the judgment. Indeed the justice of the judgment is not really called in question or impeached. A feeble it-tempt was made to show that the judgment had been paid; but the proof is entirely insufficient to sustain that defense. The declarations of Parsons, made in 1872, in relation to the payment of the judgment, were clearly inadmissible. The other evidence offered to establish the fact of payment is so very weak and unsatisfactory that it will surely warrant no inference that the judgment has been paid. There is no fact shown which tends to impeach the equity and justice of the judgment as originally rendered, or which proves that it would be against conscience to enforce it. It is true, it is alleged in the complaint that the judgment was void because there was no proper service of the summons and complaint in the action upon the deceased, Thomas D. Parsons, and that therefore the court failed to acquire jurisdiction over him. The record shows that Parsons admitted] in writing personal service of a copy of the summons and complaint upon him February 8, 1865; and the genuineness of his signature is not denied by the plaintiff; indeed it was clearly proven by tbe witness Head on tlie trial. "Whether correct practice requires any other proof of service than such a written admission by the defendant in the action, is a point we shall not determine; for we are clearly of the opinion that the judgment was not void for want of it, even if necessary. At most it would be a mere irregularity, and would not affect the jurisdiction of the court. The same remarks apply to the alleged defects in the execution. Mariner v. Coon, 16 Wis., 466.

The ground upon which courts of equity interfere to give relief against a judgment is stated in Stowell v. Eldred, 26 Wis., 604, and Barber v. Rukeyser, 39 id., 590; and it may be safely affirmed that there is not a fact established in this case which would bring it within the doctrine there laid down.

By the Court. — The judgment of the circuit court is affirmed.  