Chinnock v. Stevens

23 Wis. 396 | Wis. | 1868

DixoN, C. J.

The early decisions of this court cited in the brief, and the nicety required in order to give jurisdiction in cases of appeal from justices of the peace, are familiar to those gentlemen of the bar who have had occasion to investigate the subject. The same rigid doctrine was reiterated and applied by the majority of the court in the recent case of Widner v. Wood, 19 Wis. 190, so that it is undoubtedly as true now as it ever was, that the requirements of the statute must be pursued with the uttermost exactness, or the appeal will be a failure. I could not concur in the last decision. I doubted then, and doubt now, the correctness of the rule. It is technical in the extreme, and has been enforced with a degree of illiberality which does not characterize the practice in civil actions in any other particular. It is in clear opposition to the maxim universally observed, that appeals from inferior tribunals are favored in the law. I think the objection does not go the jurisdiction, but may be.obviated by amendment under the statute, both as before and since the last revision. “ The court shall have power to amend cvruy process, pleading or proceeding, either in form or substam,ce, for the furtherance of justice,” was the language of the statute of 1849. R. S. 1849, ch. 100, § 1. And the power now possessed by the court is the same. It may amend muy proceeding hy correcting a mistake in amy respect. R. S. 1858, ch. 125, § 37. But the rule is settled, and so settled that the validity of the appeal for any purpose depends upon the original papers having been drawn in precise and literal compliance with the language of the statute. Nothing is open to inference or intendment in favor of the appeal, and there is no power of amendment. We cannot, therefore, infer that the appellant here intended to make oath that the appeal was brought in good faith, though it is manifest that he did so intend; nor can the affidavit be amended.

The court having acquired no jurisdiction, the giving of notice of trial and placing the cause on the calendar in the circuit court by the respondent, was no waiver of the objection. This was so decided in the case last referred to, where the respondent’s attorney served notice of trial, accepted notice of retainer, and filed a note of issue in the cause.

By the Court. — Judgment affirmed.