Benjamin v. Houston, 24 Wis. 309

Benjamin v. Houston

24 Wis. 309 | Wis. | 1869

Paiíte, J.

The certificate of the justice that the notice of appeal was not signed when served on him, was no part of his official return, and consequently was no evidence. A justice, by certifying as to matters which he is not required or authorized to certify to, cannot make his certificate evidence. 1 Greenl. on Ev. § 498.

If no notice of appeal was served on the justice, he should not have sent up the papers to the circuit court. Having sent them up, if the notice was sufficient on its face, then, if it was claimed by the other party that no notice was in fact served, if he desired to move to dismiss the appeal upon that ground, he should have moved upon an affidavit, so as to give the other party an opportunity to controvert it. Such a motion ought not to have been granted on the extra-official certificate of the justice, on an oral motion, when the case, after having been regularly noticed, was reached for trial.

The appeal papers are sufficient on their face. The notice of appeal is signed by the defendant “by P. Y. Wise, his agent and attorney.” The affidavit is made by John Houston, who swears that he makes it “in behalf of Matthew Houston. ” The point of the objec*312tion is, that tbe statute requires tbe notice and affidavit to be made by tbe party, or some one by bim authorized, and that there is no proof of tbe authority on tbe face of the papers. Tbe statute does not require proof of tbe authority to constitute a part of tbe appeal papers. And where such papers are made by those professing to act as agents or attorneys of tbe party, and this appears on tbe papers themselves, they are sufficient on their face. And if tbe other party claims that there was no authority in fact, be can raise tbe question by a proper motion, and then tbe proof can be produced, if tbe authority really exists.

Tbe court erred in dismissing tbe appeal, and tbe order must be reversed, with costs, and tbe cause remanded for further proceedings.

By the Qourt-. ■— Ordered accordingly.