13 Wis. 625 | Wis. | 1861
By the Court,
This action was commenced before a justice of the peace, where the plaintiff recovered judgment, and the defendant appealed to the circuit court. In that court the plaintiff’s counsel moved to dismiss the appeal, and the motion was granted on the ground that the notice of appeal served on the justice did not correctly describe the judgment appealed from.
The action was to recover the possession of personal property. The jury found that the plaintiff was entitled to the possession, the value at $97 55, and nominal damages for the detention. The" judgment was entered for the damages and costs, amounting to $17 75, and an order that the property be delivered to the plaintiff. The notice of appeal described the judgment as being for $97 55, and $17 69 costs. The error consisted in describing the judgment as being for the value of the property as found by the jury.
W e are of the opinion that noticed of this character should not be so strictly construed as to defeat the appeal for such an inaccuracy. The statute does not prescribe what the notice shall contain. Its object is to inform the justice that an appeal is taken, and in what suit. , And if it is sufficiently accurate to accomplish that purpose, a mere inaccuracy in some particular ought not to invalidate it. This is the general rule in regard to notices, and we think it applicable to these. 11 Wend., 178; 4 Cow., 60; 6 Wis., 448.
It is true, that the giving of the notice of appeal is essential to the jurisdiction- of the appellate court. And perhaps it should be held, after rejecting any inaccuracies of description, that the notice should still contain enough on its face to be applicable to the judgment appealed from. We think this notice complies with that rule.; It describes accurately the date of the judgment, the names of the parties, the amount of costs, and the exact value of the property in controversy, as found by the jury. The error consisted only in describing the j udgment as being for this amount. But even this is more an error of form than of substance. Eor this
Another ground for tbe motion to dismiss was, that it did not appear from tbe return of tbe justice that tbe notice of appeal was ever served. Tbe appellant asked leave in tbe circuit court to obtain a further return or to show by affidavit that tbe notice was served. Tbe court decided that it might be shown by affidavit, and then tbe plaintiff’s counsel waived tbe affidavit. He also took no exception to tbe decision that it might be shown by affidavit. We think tbe proper way to have shown tbe fact, would have been to procure a further return. But as no exception was taken, and as the affidavit was waived, the defendant in error is in no position to take advantage of the error here. He claims the right to take advantage of it because it was a jurisdictional question, and consent could not confer jurisdiction. But that principle applies only to jurisdiction over the subject matter. It does not prevent parties, where the court has jurisdiction of the subject matter, from admitting, by consent, irregular proof of such facts as show that tbe particular case is properly before it.
In tbe case of Latham, vs. Edgerton, 9 Cow., 227, the appeal was never perfected as required by law. Tbe court held that the fact that tbe parties appeared and went to trial, did not give the appellate court jurisdiction. But here there was no attempt to dispense with an actual appeal, but the party only consented to irregular proof showing' an appeal properly taken. Tbe case of Dykeman vs. Budd, 3 Wis., 640, only beld that where the circuit court had not, by law, juris
The judgment is reversed, with costs, and the cause remanded for further proceedings.
