Holz v. Rediske

116 Wis. 353 | Wis. | 1903

Wihslow, J.

The docket of the justice of the peace eon--clusively shows that he lost jurisdiction of the action of Eediske against Holz when he adjourned that action until the 2d day of November on plaintiff’s request “for the reason that his [plaintiff’s] lawyer could not be present.” This was the fourth adjournment of the cause, and it could only be granted by consent of the parties, or upon affidavit showing the absence of a material witness, as prescribed in sec. 3631, Stats. 1898. It is true that it is not essential that the docket should show the cause of the adjournment, for,, in the absence of any statement in the docket as to the cause, it will be presumed that proper cause was shown or consent given. State ex rel. Dearborn v. Merrick, 101 Wis. 162, 77 N. W. 719. But where the cause is given in the docket no such presumption can be entertained, and, if the cause be insufficient, jurisdiction will be lost. This was the case in Gallager v. Serfling, 92 Wis. 544, 66 N. W. 692, where the docket showed that the cause was adjourned “in consequence of the sickness of the court.” Tbe record in that case shows that this was the expression used in the docket, and that it did not appear affirmatively by any statement in the docket that no other cause was shown, as might be supposed, perhaps, from the opinion. Thus the case became almost the exact duplicate of the case at bar, and is therefore controlling.

Tbe justice having lost jurisdiction of the case, be bad no power to issue a subpoena to compel the attendance of Holz as a witness, nor did be have any power to issue an attachment for bis appearance. Tbe attachment was void, and the arrest and detention under it constituted false imprisonment as a matter of law. Hence a verdict should have been directed against Wolshi, the justice, ánd Bediske, the plaintiff in that action; and the only question to be submitted to the jury, so far as they were concerned, was the question as to the amount of damages. As to the constable, Sirothenke, the case was different. He acted under a warrant of arrest regular on its face, and is not shown to have bad any knowledge of any lack of jurisdiction of the justice. Under such circumstances the officer is protected by bis writ. Sprague v. Birchard, 1 Wis. 457; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. Hence a verdict for the defendant Strothenke should have been directed. This will necessitate reversal of the entire judgment, as the recovery was joint. Young v. Wise, 7 Wis. 128.

There are, however, other errors claimed, and two will be noted. The plaintiff was allowed to state against objection that he had a family, and to give the number of his children. Under the rule recently laid down in Bergeron v. Peyton, 106 Wis. 377, 82 N. W. 291, this was erroneous.

The complaint shows that the action was brought specifically for the illegal arrest and the subsequent false imprisonment in the office of the justice of the peace, and not for the imprisonment in the house of correction under the conviction for using abusive language. Evidence of the imprisonment in the house of correction was allowed, however, generally, against objection by the defendants. This was clearly inadmissible and should not have been admitted as proof generally in the case. It is true that the court struck it out towards the close of the case, and, while we might not reverse for this cause alone, we deem it proper to note the error as a guide in a new trial.

The questions in the case were really very simple. The defendant Strothenlce was entitled to be discharged. As to the defendants Bedislce and Wolshi the only question was as to the amount of damages. Upon this question it was competent to show the manner of the arrest,.and all that was said and done at the office of the justice while the plaintiff was held under the warrant of attachment. There should be no difficulty upon a new trial.

By the Court. — Judgment reversed and action remanded •for a new trial.