City of Boscobel v. Bugbee, 41 Wis. 59

City of Boscobel v. Bugbee

41 Wis. 59 | Wis. | 1876

Cole, J.

1. This action was commenced before a justice of the peace of the city of Eoscobel, to recover a penalty for vio*63lating an ordinance of tbe city. The ordinance was entitled “ an' ordinance for the protection of the public peace;” and the charge against the defendant was, that he had violated the ordinance, “ by fighting and threatening to fight.” On the trial before the justice, the defendant was found guilty, and was adjudged to pay a fine of $15, besides the costs; and, in default of the payment of the fine and costs, the defendant was to be imprisoned in the county jail for ten days, or until the fine and costs were paid, or until he was otherwise discharged. From this judgment the defendant appealed to the circuit court; and the first question for consideration is, whether an appeal lay in the case. The counsel for the city contends that it does not, for the reason that section 27 of the charter enacts that “ the justices of the peace elected under this act and residing within the corporate limits of said city, shall have exclusive jurisdiction of all actions, trials and examinations arising under this act, or the ordinances, bylaws, rules, resolutions or regulations passed in pursuance of this act.” Oh. 148, Laws of 1873. This provision, we have no doubt, was only inteiided to give the justices of the city jurisdiction of the class of actions specified, to the exclusion of other justices. "We do not think it should be construed as taking away the power of the circuit court to try such cases on appeal. True, the charter does not provide for an appeal to the circuit court; but we suppose the justices’ act applies to and regulates the proceedings before the justices of the city. If the provisions of the justices’ act do not apply to those courts, there is no statute regulating proceedings before them; for confessedly the charter is silent on the subject. But we have no doubt that the provisions of the justices’ act are applicable to those courts, and that an appeal lies from their judgments. Upon this question the case of Jenkins v. Morning, 38 Wis., 198, is quite in point. It is true, the jurisdiction of the police justice in that case was defined by a reference in the city charter to the statutes which determine the jurisdiction of a *64justice of the peace, while in the charter of the city of Bosco-bel there is no such reference. But we cannot believe the legislature created these courts for the city of Boscobel and left them without any laws regulating their proceedings. The conclusion is irresistible, that the legislature intended the provisions of the justices’ act should apply and regulate the practice in the justices’ courts of the city. It results from this view, that an appeal lay to the circuit court from the judgment.

2. In the circuit court an application was made on the part of the city for a continuance, on account of the absence of a material witness. The circuit court granted the continuance on condition that the plaintiff pay the defendant’s attorney five dollars and the costs of the term, within thirty days from the close of the term, or the action be dismissed. The costs not being paid within the time limited, and that fact being made to appear to the circuit court by affidavit, on motion of the defendant’s attorney, the action was dismissed. The judgment dismissing the action on the ground that the costs of the term were not paid, we think, was erroneous. The action was quasi criminal in its character, and in that class of actions the court should not require the payment of the costs as terms for a continuance. A different rule applies than in civil cases in respect to terms of continuance.

3. The action being quasi criminal, it could not be brought to this court by appeal. The statute regulating and governing appeals to this court refers to civil actions only. The decisions upon the bastardy act are strictly in point on this question of practice. State v. Mushied, 12 Wis., 561; State v. Jager, 19 id., 235. We felt it to be our duty to briefly express our views upon the questions discussed by counsel, although the appeal must be dismissed for the reason just given.

By the Oou/rt. — Appeal dismissed.