Cassidy v. Millerick

52 Wis. 379 | Wis. | 1881

Cassoday, J.

A reversal is urged on the ground that the justice lost jurisdiction of the cause, first, by failing to enter in his docket the place to which the cause was adjourned at the time of the adjournment; and second, by calling and trying the cause at a place distant from his office, and different from the place mentioned in the summons. The statute required the justice to enter in his docket the “time and place” to which every adjournment was made. Subd. 5, sec. 3574, R. S.; sec. 11, ch. 120, R. S. 1858. A transcript of the docket entries is made evidence by statute. Sec. 4143, R. S. In Brown v. Kellogg, 17 Wis., 475, and Brahmstead v. Ward, 44 Wis., 591, cited by counsel, the entries were never made. In the case before us the entry was in fact made. The error alleged is, that it was not made until the parties had left the office. The statute does not say when the entry must be made. Of course the adjournment must always precede the entry. It may be impracticable, if not impossible, at times, to make the entry at the very moment of the adjournment.' How soon must it be made, then, to prevent the justice from losing jurisdiction?

In Kleinsteuber v. Schumacher, 35 Wis., 608, it was held that the judgment should be perfected and the costs taxed within a reasonable time, and without unnecessary delay. Here the justice states in his return that he completed the entry immediately after the parties left his office. But the docket fails to disclose any precise time after the adjournment when it was made. From the entry itself, and independent of the statement in the return, there would be nothing to indicate that it was not made at the very moment of the adjournment; on the contrary, such would be the inference. Was it competent for the justice, in his return, to impeach such entries, or do .away with the inference to be drawn from them, by stating his recollection of the order and duration of each event?

In Frederick v. Clark, 5 Wis., 191, it was held that “ a common-law certiorari brings up the record merely, and only such questions as go to the jurisdiction of the inferior tribunal will be considered.” In that case there was an attempt to impeach the return of the officer of the service of the .summons, and the court, per Smith, J., said: “If the officer made a false return, either originally or by subsequent amendment, he is liable to the party injured; but the truth or falsity of his return cannot be collaterally inquired into in a proceeding like this.”

In Baizer v. Lasch, 28 Wis., 268, it was held that “ a common-law writ of certiorari brings up only the record, and reaches only errors appearing therein, which go to the jurisdiction of the inferior tribunal.” To the same effect, Varrel v. Church, 36 Wis., 318.

In Callon v. Sternberg, 38 Wis., 539, it was held that, “ upon a common-law certiorari to a justice of the peace, the circuit court can review those jurisdictional questions only which are presented by the docliet entries and the pleadings in the cause, and cannot examine the evidence to see whether the justice has exceeded his jurisdiction, even though such evidence has been returned with the writ.”

In Healey v. Kneeland, 48 Wis., 497, there were two distinct docket records of the case,— one full, showing jurisdiction, and the other not; and it was attempted to be shown that the complete entry was made subsequently to the time it purported to be, and by another than the justice; but it was held that that fact could not be considered to do away with the presumption to the contrary.

These decisions clearly indicate that, in reviewing a judgment of a justice’s court upon a common-law writ of certio-rari, the record imports verity, notwithstanding the statements of the justice to the contrary, even upon matters of jurisdiction. The cases cited also dispose of the question as to the place of calling the suit at the time to which it was adjourned. Upon such a writ it must be conclusively presumed that it was called at his office. To allow the return to have any effect as against the record, and presumptions naturally arising from it, would be to authorize issues of fact as to what did or did not occur. If the justice can go‘outside of the record, and state in his return that his'recollection was in conflict with the records and the presumptions arising from them, then it would, at least, be fair that others.might give their recollection, and an issue of fact would thus be raised for determination. But it is not the office of such a writ to determine an issue of fact, upon affidavits or otherwise, but merely to determine jurisdictional questions of law appearing upon the face of the record.

In Newcomb v. Trempealeau, 24 Wis., 459, the record disclosed the fact that the justice called the suit at a place where he had no right to call it. The question is not whether the defendants had a remedy, but whether they were entitled to the one they sought, upon this writ. We are of the opinion that they were not.

By the Court.— The judgment of the circuit court is affirmed.