45 Wis. 94 | Wis. | 1878
These two causes involve precisely the same questions of law, and will be considered together. In each a motion is made to dismiss the appeal, principally on the ground that no copy of an undertaking was servéd upon the respondent or his attorney. It appears that notice of the appeal* was served upon the clerk and the respondent’s attorney February 9, 1878. On the 11th of that month, a bond, instead of the statutory undertaking, was served upon the clerk; but whether a copy thereof was served upon the respondent’s attorney, is a matter left in, doubt by the affidavits used on this motion. After the record was returned to this court, and after the motion to dismiss was served, the appellant obtained leave of the circuit judge to amend the proceedings on appeal, by filing a proper undertaking and serving a copy thereof upon the respondent’s attorney, which service was made on the 9th of August. How the motion to dismiss is rested entirely upon the ground that the circuit judge had no power, under the statute, to permit an amendment for the purpose of perfecting the appeal, after the record had been returned to this court. We think this position is untenable. Sec. 17 of ch. 264, Laws of 1860, provides that when a party shall, in good faith, give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken, or a judge thereof in vacation, may permit an amendment on such terms as may be just. Power to perfect the appeal, conferred by this provision, is not restricted to the time that the record remains in the court below; nor can we see any sufficient reason why it should be. It is a special statutory power, not dependent for its exercise on the possession of the record, and is in aid of the jurisdiction of this court over the appeal. It is moreover convenient that the court below, or judge, should have the power to perfect the appeal; and the legislature has clearly conferred it. That the court below, or judge thereof, might exercise that power after the return had been 'made to this court, was not questioned in Grant v. The Conn.
These were actions of replevin to recover property of less value than two hundred dollars, brought before the justice of the peace at large, of the city of ETew London. The city is organized out of portions of territory of the counties of Wau-paca and Outagamie. Judgments for the value of the property or its return were rendered against the defendant, who thereupon took an appeal to the circuit court of Outagamie county, the justice transmitting the records and' papers to that court. The circuit court, on its being made to appear, by the affidavit of E. P. Perry, that the justice before whom the action was tried, lived and held his court in the county of Waupaca, on motion, dismissed the appeals on the ground that it had no jurisdiction to try them. The correctness of this ruling is the sole question to be considered.
It is first necessary to determine the character of the court created by the city charter (ch. 162, Laws of 1877), known as the “justice of the peace for the city at large.” On the part of the appellant it is claimed, that it is a municipal as distinguished from a justice’s court; that it is in fact the same as the police court created by the village charter (ch. 485, P. & L. Laws of 1870), whose jurisdiction was defined in Zitske v. Goldberg, 38 Wis., 233, and the courts considered in Atkins v. Fraker, 32 Wis., 510; Connors v. Gorey, id., 518; Jenkins v. Morning, 38 id., 198; and Mathie v. McIntosh, 40 id., 120. We think, however, the better view is to regard it as a justice’s court. Great difficulties will undoubtedly arise in sustaining the jurisdiction to the extent conferred by the city charter, whether it is treated as a justice or municipal court. The legislature speak of this officer as a “justice of the peace;” and while this language would not be controlling if we could see that it was really a municipal court, yet it is entitled to
By the Court.— The orders of the circuit court dismissing the appeals are reversed, and the cause remanded for further proceedings according to law.