75 Wis. 325 | Wis. | 1889
The affidavit for the removal of the examination was, in the language of .the statute, “ that, from prejudice or other cause,”' the person charged believed the justice would “ not decide impartially in the matter,” etc. Sec. 4809, R. S.
The use of the disjunctive in the affidavit in the case at bar is unlike that class of cases where every alternative stated in the language of the statute states a fact sufficient to authorize the remedy; but, as observed, it is a case where one of the alternatives may be a mere mental conception, unsupported by the statement of any facts authorizing the remedy. We are clearly of the opinion that perjury'could not be predicated upon the affidavit in question. Clifford v. State, 29 Wis. 329; Goodyear Rubber Co. v. Knapp, 61 Wis. 103. This being so, it was insufficient to oust the justice of jurisdiction.
This makes it unnecessary to consider whether the justice would have been protected by reason of having acted judicially, had the affidavit been sufficient. That question was ably discussed at the bar, and the valuable briefs will be preserved in the record.
It follows that the defendant, as justice of the peace, had jurisdiction, and hence there was no false imprisonment.
By the Court — The judgment of the circuit court is affirmed.