Butler v. Wagner

35 Wis. 54 | Wis. | 1874

DixoN, 0. J.

This action was instituted, tried and determined before a justice of the peace, and an appeal taken from his judgment to the circuit court, when the law stood as in Howard v. Mansfield, 80 Wis., 75. It was so commenced, tried and determined, and the appeal taken, after the act of 1870, there spoken of, was in force, and before the act of 1871 was approved and published. It was a suit upon one note instead of hvo as in the case referred to, and that note was for the payment of more than one hundred dollars. Counsel for the defendant argue that it was not a note given for the payment of more than one hundred dollars, but to this we cannot agree. It was for the sum of one hundred dollars payable one year after date with interest at ten per cent, from date until paid, which was the same as if it had been a promise in so many words for the payment of one hundred and ten dollars one year after date.

The same counsel likewise argue that the note was not given for the payment of more than one hundred dollars, because they say it was a forgery, and so found by the jury, and therefore not given at all, or for the payment of any sum of money or other valuable article whatsoever. It is obvious that, for the purpose of testing the jurisdiction of the justice, which is the only question here, it is immaterial upon what ground the validity of the note was denied, whether of forgery or some other. To authorize the magistrate to hear and determine the defense of forgery, the action. must have been one in which he had jurisdiction to render judgment upon the note in case it had been found not to be a forgery, but a valid promise to pay. The jurisdiction of the justice depended upon the amount for which the note purported or was claimed to have been given, and the sum alleged to be due upon it, and not upon its invalidity, subsequently ascertained, under the defense of forgery, fraud, or any other which might be set up.

The question of jurisdiction in this case differs, therefore, from that presented in Howard v. Mansfield, in this, that the note here was given for an amount exceeding one hundred dollars, and had not been reduced by credits or payments indorsed thereon to an amount not exceeding that sum, and so was within the exact words of subdivision 1 of section six, withholding or excluding the jurisdiction of the justice over an action brought upon it. We must hold, therefore, that the justice had no jurisdiction of the subject matter of the action; and, he having had none, it follows that the circuit court acquired none by the appeal, and should have dismissed the action on that ground. Klaise v. The State, 27 Wis., 462, 464. In such case it matters not by whom the want of jurisdiction is suggested, whether by the plaintiff or the defendant, or which party moves to dismiss for that reason, or at what stage of the proceedings the motion is made. The objection is fatal whenever brought forward in the progress of the cause.

The position assumed by counsel for the defendant, that subdivision 1 of section six, as it stood prior to the act of 1871, only conferred jurisdiction upon a justice of an action upon a note, bill, bond, or other instrument in writing given for the payment of money or other valuable article, for any amount exceeding one hundred dollars, which had been reduced by credits or payments indorsed thereon, to an amount not exceeding one hundred dollars, and that it did not attempt to confer jurisdiction where the note or other instrument was given for one hundred dollars or under, but that jurisdiction over actions on notes and bills of the latter class was conferred by subdivision 1 of section five, which by the act of 1870 had been extended to actions wherein the debt or balance due or damages claimed did not exceed two hundred dollars, is a new argument in support of the decision in Howard v. Mansfield, and no doubt a better and more satisfactory one than any adduced in the opinion in that case. It seems very clear that counsel are correct in their views and construction of the statute; for they construe according to its plain reading, which leaves no room for doubts or surmises; and, if the decision in Howard v. Mansfield had also been put upon this ground, it would doubtless have escaped the criticisms of which it has sometimes been the subject.

By the Court. — Judgment reversed, and cause remanded to the circuit court with directions that it be dismissed.