54 Wis. 630 | Wis. | 1882
The plaintiffs complain that they were entitled to the possession, and lawfully possessed, of a-certain lot in-, the village of Stoughton, on which was situated a small build- • ing and a platform, owned by the Northwestern Mutual Life Insurance Company, and that the defendants unlawfully broke and entered said premises, and unlawfully withhold possession , thereof. The defendants answered by a general denial, and giving notice that they would prove on the trial that they entered and held possession of said premises by virtue of a lease from said insurance company. The plaintiffs, on the trial, proved 'their lease by correspondence with J. J. R. Pease, of Janesville, the- pretended agent of the insurance company, and particularly by a letter of theirs dated February 3, 1881, making a proposition to rent the premises, and a letter from said Pease to them, dated February 4, 1881, accepting said proposi
It appears, also, that Daws continued and was in the actual occupancy of the premises until and when the defendants entered, as complained of.
It is very clear from this evidence that Daws was the tenant at will of the plaintiffs, and that he was in the actual possession of the premises, and the plaintiffs were not, when the trespass was committed.
Under such circumstances can the plaintiffs maintain against the defendants this action of quare olausum? The learned counsel of the respondents refer ns to the statute (section 4216, R. S.), which provides that the possession of the tenant shall be the possession of the landlord until the expiration of ten years from the terminación of the tenancy, or from the time of the last payment of rent, notwithstanding such tenant may have acquired another title. This statute was not made
It is objected that Daws is in no sense a tenant at will of the premises, but a mere servant or agent to keep and hold the same for the plaintiffs, and that he had surrendered up the possession to them. But Daws had been a tenant under alease, paying rent, and enjoying and using the premises for certain purposes. He was allowed by the plaintiffs to continue in the possession and actual occupancy of the premises for the same purpose, until he should receive notice to vacate them or surrender them to the plaintiffs.
The case of Stoltz v. Kreischmar, 24 Wis., 283, is very much in point. There the plaintiff was the lessee, and Ire put another in the possession, who had the use of the premises for an indefinite time. The present chief justice said, in the opinion: “ This is an action of trespass quare clausum. Of course, the gist of the action is an injury done to the possession. Unless a person is in possession of real estate, active or constructive, he cannot maintain the action. This principle is elementary.” And, again: “Precisely what Klein’s estate was under the agreement — whether he was a tenant at will or for years,— we need not determine.” So, as the plaintiff had not the actual possession of the' premises when the injury was committed, he cannot maintain this action. There is no doubt that he could maintain an action on the case for an injury to his reversion as lessee.” The case of Clark v. Smith, 25 Pa. St., 137, is cited in thé opinion, and the following language of Chancellor Kent (4 Kent, 114): “If the tenant be placed upon the land without any terms prescribed, or rent reserved, and as a mere occupier, he is strictly a tenant at will.”
Daws, as a tenant at will, could have brought this action.
The record in this case is anomalous. The action appears to have been commenced before the Hon. A. B. Bbaley, judge of the municipal court of Dane county, having the jurisdiction of a justice of the peace. The damages claimed are $12, and the judgment rendered is for six cents and costs. On appeal to the circnit court the return is made by the clerk of the municipal court of Dane county, and under the seal of said court, and there is no return by the said judge of the municipal court, either as judge of that, court or as a justice of the peace, “of the testimony, proceedings and judgment,”as required by section 3763, R. S., or of any transcript, and there is no certificate by him of any record or proceedings in the case. There was no new trial of the action in ehe circnit court, and the case was heard upon the above return of the clerk of the municipal court; and the court made and filed findings of fact, and rendered judgment in the ordinary form against the defendants
We do not decide whether, -in the absence of any return whatever'by the judge who tried this action as a justice of the peace, the circuit court obtained jurisdiction of the cause, or whether such defect was or could be waived by the parties going to trial in the circuit court without objection, because the questions were not raised or discussed by counsel on the argument. We may refer, however, to the case of State v. Allison, 47 Wis., 548, in which it was held that cases within the jurisdiction of justices of the peace, tried in the municipal court of Milwaukee county, could not come to this court upon the report of the judge, but that such cases must be treated as in a justice’s court.
But objection is taken to the form and regularity of the judgment in the circuit court, that it should have been an
By the Court.— The judgment of the circuit court is reversed and the cause remanded with direction to reverse the judgment of the judge of the municipal court of Dane county.