In State v. Ndina, 2009 WI 21, 315 Wis.2d 653, 761 N.W.2d 612, our supreme court clarified that forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right. Id., ¶ 29. Although CPC quotes from case law speaking of waiver as the “voluntary and intentional relinquishment of a known right,” we do not understand CPC to be seriously disputing American Trust's assertion that the applicable test is found in Home Bank v. Becker, 48 Wis.2d 1, 179 N.W.2d 855 (1970). And, the analysis in Home Bank did not involve determining whether a person voluntarily and intentionally relinquished a known right.
The fact of service on a claimant and proof of that service are two different concepts. Home Bank v. Becker, 48 Wis. 2d 1, 6, 179 N.W.2d 855 (1970). Just as it is the fact of service of a summons, not the form of the proof of that service, that is necessary in order to confer jurisdiction on a court in many circumstances, see, e.g., Gehr v. City of Sheboygan, 81 Wis. 2d 117, 122, 260 N.W.2d 30 (1977), it is the fact of service on the claimant that commences the running of the six-month statute of limitations under Wis. Stat. § 893.80(1g).
Wisconsin law does not support this reading of the doctrine of incorporation by reference. See Home Bank v. Becker, 48 Wis.2d 1, 9 (1970) (“The phrase ‘incorporated by reference' has the legal effect of making the document so referred to part of the principal document so that both are to be read together as one.” (emphasis added)).
' State ex rel. Wall v. Sovinski, 234 Wis. 336, 342, 291 N.W. 344 (1940). See also, Home Bank v. Becker, 48 Wis.2d 1, 7, 179 N.W.2d 855 (1970). "The fact that the award came many years after the void order is of no consequence.
' State ex rel. Watt v. Sovinski, 234 Wis. 336, 342, 291 N.W. 344 (1940). See also, Home Bank v. Becker, 48 Wis.2d 1, 7, 179 N.W.2d 855 (1970)." Kohler Co. v. ILHR, 81 Wis.2d 11, 25, 259 N.W.2d 695 (1977).
These sections make clear that for a court to exercise personal jurisdiction over a party which neither submits nor waives a jurisdictional objection, a summons and complaint must issue. Our cases have been consistent in so holding. See: Howard v. Preston, 30 Wis.2d 663, 669, 142 N.W.2d 178 (1966); Home Bank v. Becker, 48 Wis.2d 1, 6, 179 N.W.2d 855 (1970); Gehr v. Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30 (1977). Exceptions to this rule have been recognized in cases where a court exercises jurisdiction over a criminal defendant or juvenile because of the accused's physical presence in the court, Pillsbury v. State, 31 Wis.2d 87, 92, 142 N.W.2d 187 (1966); State ex rel. La Follette v. Circuit Court, 37 Wis.2d 329, 343, 155 N.W.2d 141 (1967), and where a statute specifically provides for the exercise of jurisdiction without service.
This section has been construed to mean that a judgment involved under this section is also void ". . . in the sense that it is subject to being vacated at any time where the proper notice of entry has not been given." Home Bank v. Becker, 48 Wis.2d 1, 7, 179 N.W.2d 855 (1970). By Ch. 261, Laws of 1973, 270.69 was repealed and recreated to read:
[Cases omitted.] These rules have more recently been summarized and approved by this court in numerous cases. Gumz v. Chickering (1963), 19 Wis.2d 625, 121 N.W.2d 279; Barnard v. Coates (1965), 28 Wis.2d 1, 135 N.W.2d 809; Bihlmire v. Hahn (1966), 31 Wis.2d 537, 143 N.W.2d 433, certiorari denied, 387 U.S. 905, 87 Sup. Ct. 1685, 18 L.Ed.2d 622; Hales Corners Savings Loan Asso. v. Kohlmetz (1967), 36 Wis.2d 627, 154 N.W.2d 329; Home Bank v. Becker (1970), 48 Wis.2d 1, 179 N.W.2d 855."
Laches is not a defense, and there is no necessity of showing a meritorious defense to the action on the merits. See, Home Bank v. Becker, 48 Wis.2d 1, 179 N.W.2d 855 (1970). A void judgment may be expunged by a court at any time. Where, as here, the claim is made that the judgment is void for want of personal jurisdiction, all that is needed is the determination that, in fact, jurisdiction was not acquired in the proceedings that led up to the entry of the judgment.
]" State ex rel. Wall v. Sovinski, 234 Wis. 336, 342, 291 N.W. 344 (1940). See also, Home Bank v. Becker, 48 Wis.2d 1, 7, 179 N.W.2d 855 (1970). The fact that the award came many years after the void order is of no consequence.