77 Wis. 121 | Wis. | 1890
It is understood that the circuit court reversed the judgment of the justice solely on the ground that the latter lost jurisdiction of the case by his failure to enter in his docket on December 8, 1881, the place to which the recess was taken. Sec. 3514, R. S., requires the justice to enter in his docket “ every adjournment, stating at whose request and to what time and place.” (Subd. 5.) It was held in Brahmstead v. Ward, 44 Wis. 591, and in several earlier cases there cited, that the place to which the cause is adjourned must appear from the docket entries made by the justice, or he loses jurisdiction. Such is the law of this state. The question is, therefore, Does the same rule apply where, as here, the docket entry is not that the cause was adjourned, but that a recess was taken by the court?
It is argued that there is no difference between an adjournment and a recess. It is doubtless true that an adjournment includes a recess, because it suspends for the time being the proceedings in the cause. But we think a recess is not necessarily an “ adjournment,” within the meaning of the latter term as used in the statute. Webster says that the word adJjowrn, both in England and this country, is applied to all cases in which public bodies separate for a brief
It seems to us that the result indicated as essential to constitute an adjournment was not accomplished by the proceeding of December 8th, as entered in the docket. True, the trial of the cause was thereby suspended until the next day, just as it would have been for a shorter, period had a recess been taken for an hour to enable the justice to get his dinner. We suppose no one will claim that such a suspension of the trial is an adjournment, even though the justice may have entered in his docket that the cause was adjourned for one hour for that purpose. In contemplation of law, there would have been a court in existence at the place of trial during the dinner hour, although its functions were temporarily suspended. So in the present case there is nothing to show that thd court was terminated, or even that the justice left the place of trial until the cause was finally disposed of on December 9th. The record only shows that, by reason of the illness of the justice, he suspended proceedings in the case until the next day at a certain hour. Had he done so for the same cause for one hour or two hours, it wóuld not have been an adjournment, under any reasonable interpretation of the statute. How can it affect the principle that, owing either to the lateness of the hour, or the severity of his illness, or both, he suspended the proceedings a few hours longer?
The rule of the cases above referred to is a harsh one, and should not be extended to a case not clearly within it. In our. opinion, this case is not clearly within the rule, but is fairly distinguishable from the cases in which it has been applied. We hold, therefore, that the suspension ©f the proceedings from December 8th to December 9th, for the reason and under the circumstances stated in the docket entry, was not an adjournment of the cause, and hence the justice did not lose jurisdiction thereof because he failed to enter the place at which the trial would be resumed.
It appears by the docket entries that the defendant Willes was not served with process, and did not appear in the action, and that on the return day of the summons the justice rendered judgment against him by default in favor of the plaintiff. It is claimed that the rendition of such judgment terminated the jurisdiction of the justice as to the other defendants. The point is not well taken. The justice had no jurisdiction to render such judgment, and the same is a nullity, and cannot possibly affect his jurisdiction to proceed in the action against the other defendants.
By the Qov/rt.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to affirm the judgment of the justice.
