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State v. Boyd8/23/2000
1) he raised in his answer the affirmative defense that the service of process was inadequate, and (2) the affidavit certifying service was not introduced until the June 2, 1999 hearing, at which Boyd promptly made an objection to its contents. The record reveals that Boyd did object to the affidavit's reliance on hearsay information. The first mention, however, of Boyd's information and belief claim occurs on appeal. Both of Boyd's arguments are similar. The gist of both of these claims is an attack on the adequacy of the affidavit to prove service. For the sake of brevity, we consider these arguments together.
. In Studelska v. Avercamp, 178 Wis. 2d 457, 460-64, 504 N.W.2d 125 (Ct. App. 1993), we held that in our notice pleading state, a general objection to service of process in an affirmative defense was sufficient notice to the opposing party that the content of the summons and complaint would later be challenged. Boyd raised this issue as an affirmative defense; therefore, the Studelska reasoning supports Boyd's assertion that his claims are not waived. In addition, whether to apply the waiver rule in a particular case is a decision left to this court's discretion. See County of Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). We will not apply the waiver rule to Boyd's arguments under the present circumstances.
. We now turn to the merits of Boyd's claim. In response to Boyd's challenge to the service of process, the State submitted to the court a "SWORN AFFIDAVIT OF SERVICE," in which DeCecco averred in relevant part:
(6) To the best of my knowledge and belief, I served Defendant Boyd with an authenticated copy of the Summons based on the following:
....
(c) On June 1, 1999, your Affiant spoke with Assistant Clerk of Courts Edie Sagal who stated that the time stamping and affixing the "CV" number on the documents constituted "authentication" as interpreted by the Clerk's office.
(d) ACC Sagal also informed your Affiant that it is standard procedure to so "authenticate" all civil Summons and Complaints submitted for processing to that office.
(e) Your Affiant served the Defendant with the Summons and Complaint received from the Clerk's office after processing.
Boyd argues that this affidavit does not conform to the requirements of Wis. Stat. § 801.10(4) because it does not make an "unqualified statement that service of an authenticated copy of the summons was accomplished." He contends that DeCecco is only guessing about whether he served Boyd with an authenticated copy because his declaration states that proper service was done " o the best of knowledge and belief." Moreover, in the affidavit, DeCecco does not rely on his personal knowledge to attest that an authenticated summons was served on Boyd, but instead refers to a third person's knowledge about the clerk's office's processing procedures.
. The requirements for an effective affidavit of service are declared in Wis. Stat. § 801.10(4)(a).
Personal or substituted personal service shall be proved by the affidavit of the server indicating the time and date, place and manner of service, that the server is an adult resident of the state of service not a party to the action, that the server knew the person served to be the defendant named in the summons and that the server delivered to and left with the defendant an authenticated copy of the summons.... The affidavit or certificate constituting proof of service under this paragraph may be made on an authenticated copy of the summons or as a separate document. Id.
. When resolving a question about the adequacy of service of process, a
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