The attempt was made, as it is claimed, to prosecute the plaintiff for the violation of sec. 4398, R. S. It is not claimed that the plea of not guilty and adjournment before the justice was any waiver of the question of jurisdiction. It clearly was not within the rule stated in Steuer v. State, 59 Wis. 472. The learned counsel for the defendant frankly concedes that the complaint made by the defendant before'the justice charges no offense whatever, and that the warrant issued thereon, reciting the complaint, charges no offense whatever; and hence that the warrant is absolutely void upon its face,— especially within the rule announced by this court in Steuer v. State, supra. With equal frankness the same counsel also concedes that the evidence in the record tends to show that the defendant maliciously made the complaint, and that he received the warrant from the justice, delivered it to his attorney, who delivered it to the officer for the purpose of having the
A careful reading of these cases discloses the fact that they are all distinguishable. In Beaty v. Perkins, 6 Wend. 382, both the warrant and the complaint upon which it was issued seem to have charged an offense, and of course it was held that the party making the complaint was not liable in trespass. In Stewart v. Hawley, 21 Wend. 552, the constable who made the arrest was the party who made the complaint to the justice, and it was held that an action of trespass or false imprisonment could not be maintained against him or the justice, and this was put on the ground that the recitals in the complaint and warrant presented “ a case within the jurisdiction of the justice, and which called for the exercise of his judicial functions, and if so, though he may have erred, he is not liable.” Page 556. Chief Justice ETblson said: “I cannot agree with the plaintiff that the facts are so barren as not to lay the foundation for jurisdiction, or that the decision was so gross as to afford evidence per se of the influence of bad motives.” In Von Latham v. Libby, 38 Barb. 345, the opinion of the court expressly states that “ the only connection of the defendants with the arrest or detention of the plaintiff ... is that
Such are the authorities upon which we are asked to sustain the nonsuit. It will be observed that none of the cases cited go to the extent of holding that a warrant void upon
The evidence tending to show that the defendant participated in making the arrest after the warrant was issued is weak, but we think it was sufficient to take the case to the jmy-
By the Oowrt. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.