Felt v. Felt

19 Wis. 193 | Wis. | 1865

At the June term, 1863, this court affirmed the judgment of the circuit court, and the following opinion was filed :

By the Court,

Paiíte, J.

This action was commenced before a justice of the peace, on a promissory note, the plaintiff claiming one hundred dollars damages. The justice gave judgment for the plaintiff, and the defendant appealed to the circuit court. On the trial, the plaintiff offered a note in evidence, for the sum of six hundred dollars, on which there were no credits or payments indorsed. There was a memorandum on the "back, made by the justice, showing the date when it was filed before him, and that the plaintiff offered to release all except one hundred dollars. But this certainly cannot be regarded as any indorsement of a credit or payment on the note.

When it was offered in the circuit court, it was rejected upon the ground that it would not have been admissible before the justice. This was correct. Section six, chapter 120, R. S., gives a justice jurisdiction in an action upon a note given for more than one hundred dollars, “ which has been reduced by credits or payments indorsed thereon to an amount not exceeding one hundred dollars.” It is very clear, that under this provision the actual reduction of the note to an amount not exceeding one hundred dollars, by indorsements on it, is essential to enable a justice to render any judgment upon it.

The only way in which the counsel for the plaintiff sought to sustain the jurisdiction of the justice, was by resorting to section 5 of the same chapter, which gives to justices general jurisdiction in actions upon contract where the debt or balance due or damages claimed do not exceed one hundred dollars. But it is a well settled rule of construction, that specific provisions relating to a particular subject must govern in respect to that subject, as against general provisions in other parts of the law, which might otherwise be broad enough to include it. And by this rule, the provisions of section six, relating specially to actions on notes given for more than one hundred dollars, must govern the case. And it follows that the circuit court could not give judgment on the note, inasmuch as the justice could not have done so. Eor it would have been improper to allow the plaintiff to amend the ad damnum clause in his complaint, and proceed in the circuit court for the whole amount, as though the suit had been originally commenced there. It is unlike those cases where plaintiffs have been allowed to do this and recover greater damages on appeal than the justice had jurisdiction of. In all those cases, the jurisdiction depended on the amount of damages claimed; and while the suits were before the justice, he had full jurisdiction to give judgment for the amount claimed before him. That being so, the suits could properly go by appeal to the circuit court, and the only result of allowing them to claim greater damages there would be, to enable them to avail themselves of the more enlarged powers of the court in which they then were to give relief in a suit which the justice might properly have tried and given judgment in for all that was claimed before him. But here it is different. Here the justice was never authorized to try any action upon this note at all. And for the circuit court to try it and give judgment for the plaintiff, would be for it to get jurisdiction, through an appeal, of a suit in which the justice had no jurisdiction. All that it could do on such an appeal would be, to correct the error of the justice in respect to his own jurisdiction, by refusing to sustain the action. And according to the rulings of this court, it could properly give judgment against the plaintiff for costs. Paine et al v. Chase, 14 Wis., 653.

The judgment is affirmed, with costs.

A rehearing was granted, and the cause was re-argued at the January term, 1865.

Wheeler & Brown, for appellant.

O. G. Remington, for respondent:

1. It did not appear on the trial in the circuit court, that the note offered in evidence was the same one on which the action was commenced. The complaint did not show for what amount that note was given. It appears that the note was not filed wth the justice as a part of the complaint, (1.) Because the justice makes no mention of such filing in his docket, but states that the complaint was made in a different-way. (2.) Because the note would in that case have been returned to the circuit court as a part of the papers in the case; which was not done. The justice does not return any statement to the effect that any such note was was offered in evidence before him. The indorsement upon the note was not offered in evidence, and would not have proved what is claimed if it had been. 2. The note was not received in evidence. Could the mere offer of evidence, which is rejected, prove facts sufficient to oust a court of jurisdiction, which jurisdiction, but for such offer, would be unquestionable ? 8. A verdict follows in all cases after a jury is sworn, unless a juror is withdrawn, or a nonsuit is asked by one of the parties. 4. If the judgment is wrong, still it does not inj are the appellant, and therefore will not be disturbed. (1.) If the note offered in evidence is the one on which the suit was brought, the justice had no jurisdiction, and the action must eventually be dismissed with costs. (2.) The judgment, if affirmed, would be no bar to a new action on the note offered in evidence ; since the very existence of such a judgment is itpon the supposition that the justice’s court had jurisdiction of the suit, which therefore could not have been on this note. Besides, it is not described in the complaint and therefore could not be barred.

By the Court,

DowjveR, J.

We are satisfied that the circuit court erred in trying or attempting to try this case on the merits, and in rendering judgment for costs. We cannot agree with the counsel for the respondent that it nowhere appears in the record that the note offered in evidence in the circuit court is the same as that declared on before the justice. We think the indorsement on the back of it sufficiently proves it to be the note on which the suit was brought. The former opinion of this court in this case, that thé justice had no jurisdiction of the subject matter of the action, and that therefore the circuit court, on appeal, had no jurisdiction, is right. Malone v. Clark, 2 Hill, 657; Stephens v. Boswell, 2 J. J. Marshall, 29. But we think the former opinion, so far as it relates to the right of the circuit court to give judgment for costs, was erroneous. The case of Paine et al. v. Chase, 14 Wis., 653, referred to in the former opinion, relates to the practice of the supreme court, and correctly construes the statute regulating costs in this court. But the circuit court, instead of trying the case, should have dismissed the appeal for want of jurisdiction ; and if any costs could have been given by the circuit court on such dismissal, the judgment would have been against the respondent in this court, defendant and appellant below; whereas the circuit court empanneled a jury, tried the case, and rendered a judgment in favor of the respondent on a verdict of the jury in his favor, that the .plaintiff take nothing by his action, and for costs.

We think, however, on a dismissal by the circuit court of the appeal for want of jurisdiction, it can render no judgment for costs. 1 Wis., 511; 4 Wis., 188.

The judgment of the circuit court is reversed, with costs.