City of Platteville v. Bell

66 Wis. 326 | Wis. | 1886

Oassoday, J.

It is claimed that the justice had no jurisdiction. The premises in question were within the city. This being so, the statute required that the party complaining should proceed by action before a justice of such city. Sec. 3362, R. S. It is claimed that Mr. Gardner was elected a justice of the peace by the town, and not by the city. He testified, in effect, that he was a justice of the peace of the town; that he was elected justice of the peace of the city in March, 1882; that his term as city justice commenced the first Monday of May, 1882, and expired the first Monday of May, 1884; that in March, 1884, one Harry Roun-tree was elected as his successor; that said Rountree told him he would not qualify, and never demanded the docket of him, and that it was still in his hands; that he supposed he held over till his successor qualified; that there was no city justice except him; that he resided and kept bis office in the city when this action was commenced; that he was town justice when he was elected city justice; and that ho was then serving his second term as town justice, and that it would expire in May, 1885. This testimony was undisputed. The city charter provided that among the elective officers of said city should be one justice of the peace; that said justice of the peace should hold his office for the term of two years from and after the first Monday in May succeeding his election;- that such justice of the peace should be chosen at the first election under the charter, and biennially thereafter; and that such justice of the peace should have the same jurisdiction and perform all the duties of a justice of the peace elected in towns, as provided by the general statutes. Sec. 4, subch. 1, and sec. 10, subch. 4, ch. 83, Laws of 1880. The charter nowhere said that such justice should hold his office until his successor was elected and qualified. But the constitution provides that “the electors of cities a,nd villages, at their charter elections, shall, in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be for two years and until their successors in office shall be elected and qualified.” Sec. 15, art. NIL Under this provision it is plain that Justice Gardner had the right to hold his office of city justice not only until his successor in office should be elected, but also until he qualified. State ex rel. Wood v. Goldstucker, 40 Wis. 129.

The mere fact that the warrant recited that he was “ a justice of the peace in and for said county,” and was signed by him simply as “justice of the peace,” without adding of the city, did not take away his jurisdiction to hear and determine the case. He was at least acting as justice of the peace for the city de faeto, if not de jure.

2. There is no ground for claiming that the title to land was in issue. The making of the contract by -Christopher Bell was admitted. He was admitted to be the city’s “ contractor and builder.” The defendant expressly claimed to be in possession “ as surviving partner of ” such, contractor and builder. He had no standing in court except under the contract and as surviving partner of the original contractor. By making the contract, the contractor, and the defendant claiming under him, recognized, and by implication admitted, the city’s right and title to the building contracted for, together with the lots upon which it was situated. He had no right there as owner of the building and lots, but only as such contractor. True, he owned such materials as were brought upon the premises, but as fast as such material became incorporated into the building it ceased to be his, and became a part of the realty. Under the pleadings the title was not and could not be in issue. Newton v. Leary, 64 Wis. 190.

3. It is claimed that the proceedings were unauthorized by sec. 3360, R. S. But, as already observed, the defendant never had any right to be in possession of the building at all except under the contract and as surviving partner of the contractor. That possession was never anything more than a qualified and subordinate possession. It was in no sense an exclusive possession. The moment he asserted and entered upon the exclusive possession he made an entry not given by law, and hence an unlawful entry. It then became a possession secured only by the exclusion of the owner. The mere fact that he was in the peaceable occupancy when he assumed such exclusive possession made his action none the less unlawful and wrongful. “ No person shall make any entry into real property but in cases Adhere entry is given by law.” Ibid. No exclusive entry was ever given to the defendant by law. The defendant “having peaceably ” but “ unlawfully ” entered upon the exclusive possession of the building, and “forcibly” held the same, was liable to “ be removed therefrom, and fined in the manner provided in ” ch. 145, R. S. Ibid.

See note to this case in 28 N, W. Rep. 407.— Rep.

4. It is claimed that a nonsuit should have been granted. This is on the theory that there was no evidence tending to show that the plaintiff was wrongfully or unlawfully excluded from the building. Without going into the evidence, we think it conclusively appears that the city was so excluded.

5. It is claimed that the court should not have directed a verdict for the plaintiff. This is on the ground that there was evidence tending to prove, in effect, the facts alleged in the answer, and that there was no forcible exclusion or detention. Undoubtedly the defendant in good faith believed that he had the right to hold the possession of the building until he received payment of what he claimed to be his due, or until the amount should be properly settled, agreed upon, and adjusted; and that he might waive his legal rights in that regard by voluntarily yielding possession. This was simply a misconception of his legal rights,— liable to occur to lawyers as well as others. The defendant had no right even to the ordinary mechanic’s lien against the municipality. Wilkinson v. Hoffman, 61 Wis. 639.

Counsel for the defendant concedes “ that the building was substantially completed August 25, 1884.” Being substantially completed, the defendant had no lawful right to exclude the plaintiff, nor to forcibly retain the possession. That he did so unlawfully exclude and forcibly detain, we think conclusively appears from the undisputed evidence. This being so, there was no error in directing, a verdict.

By the Oourt.— The judgment of the circuit courtis affirmed.