State v. Robert M. Schmitt, 2012 WI App 121 (recommended for publication); case activity
Although “the summons, complaint and the supporting affidavit must each be authenticated as a condition of personal jurisdiction when commencing a forfeiture action,” ¶1, an authentication defect attributable to a clerk’s error is merely technical and doesn’t impair jurisdiction.
¶4 In Schmitt’s case, the first page of the summons and the first page of the complaint were each authenticated, but the first page of the affidavit was not. Schmitt moved to dismiss the action for lack of jurisdiction. …
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9 However, our review shows us that the summons, complaint and affidavit are stapled together, bound with a blueback and filed as one document. …
¶10 We look to American Family to determine the nature of this defect. The American Family court crafted an exception to the general rule that lack of an appropriate file stamp is a fundamental error. American Family, 167 Wis. 2d at 533-34. Compliance with filing, authentication and service requirements “does not encompass the clerk’s responsibilities.” Id.
Thus, an erroneous case number stamped on the Summons and Complaint by the clerk should not be viewed as fundamental. Such error is technical and will not preclude personal jurisdiction unless the defendant is prejudiced thereby.… While complainant has the burden to meet the requirements of sec. 801.02(2) Stats., a clerk’s responsibility to perform his or her duty of stamping a Summons and Complaint is beyond the control of the complainant.
American Family, 167 Wis. 2d at 534. We are confident that, in this case, the clerk’s incomplete stamping was “beyond the control” of the State. To repeat, the record shows that the summons, complaint and affidavit were presented to the clerk at the same time as one document. The clerk failed to authenticate the affidavit. As discussed in American Family, this clerical error falls outside the rule that the complainant must show there was no defect in the commencement of the suit. Id.
Schmitt didn’t allege any prejudice, and given that he received notice of the action and a copy of the affidavit, the court concludes that prejudice can’t be shown, ¶13.
