
    Electric Appliance Company, Respondent, vs. Warren, Appellant.
    
      September 26
    
    October 21, 1902.
    
    
      Judgment by default: Power of cleric: Personal service: General appearance: Appeal.
    
    The clerk has no power to enter judgment out ol term, under sec. 2891, Stats. 1898, unless the process was personally served upon the defendant, i. e., delivered to him personally; and this disability of the clerk is not waived by a general appeal by defendant from the whole of the judgment or by an attack, in the appellate court, upon the merits of the judgment.
    Appeal from a judgment of the circuit court for Taylor county: JohN K. Pakish, Circuit Judge.
    
      Reversed.
    
    Appeal from a judgment upon several promissory notes, taken by default before the clerk. Service upon defendant was attempted to be made by leaving a copy of the summons and complaint with the defendant’s wife, but the proof fails to show that the defendant could not be found. No appearance was made by the defendant, unless taking an appeal from the whole and every part of the judgment and serving a general notice of appeal was such appéarance.
    
      ■Idim B. Hagcurty, for the appellant.
    For the respondent there was a brief by Bchweppe & Urquhari, añd oral argument by B. IS. Bchweppe.
    
   BakdeeN, J.

It is conceded that the proof of service of the summons and complaint in this action is insufficient. In Moyer v. Cook, 12 Wis. 335, this court held that the words “personal service,” in a statute similar to subd. 1, sec. 2891, Stats. 1898, meant delivery of the papers served to' the defendant personally. In McConkey v. McCraney, 71 Wis. 576, 37 N. W. 822, the rule established by former decisions of this court, there cited, was affirmed, — that the clerk had no power, under sec. 2891, to enter judgment out of term, when the process had not been' personally served upon the defendant. The cases on this subject were reviewed in the late case of Zimmerman v. Gerdes, 106 Wis. 608, 82 N. W. 532, where it was held that a judgment taken by defendant under the statute mentioned, without jurisdiction over the person, would be reversed on appeal, notwithstanding the appeal was a general one from the whole judgment. This is decisive of this appeal. The clerk had no power to enter judgment out of term when the process was not personally served upon the defendant, and this disability is not waived by a general appeal, or by an attack upon tbe merits of tbe judgment in tbis court.

By the Court. — Tbe judgment is reversed, and tbe cause is remanded for further proceedings according to law.  