Kidder v. Fay
60 Wis. 218
Wis.
1884
Check Treatment
LyoN, J.

It is urged, by counsel for plaintiff, that, because there is no affidavit of appeal, the record fails to show a valid appeal from the judgment of the justice, and hence that the circuit court should have dismissed the same. We are of that opinion. The jurat not being signed, the legal presumption is that the paper in the form of an affidavit of appeal was not sworn to; in other words it is not an affidavit. Royston's Appeal, 53 Wis., 612. So the record contains no affidavit of appeal. Such an affidavit is absolutely essential to the jurisdiction of the circuit court, and the same must appear of record. It is not sufficient that the appellant is able to prove by parol that he actually made the required affidavit. No such evidence is admissible. All the decisions of this court relating to the subject are to this effect. Evangelical L. St. P. Gerneinde v. Koehler, 59 Wis., 650, and cases there cited. See, also, Iverslie v. Spaulding, 32 Wis., 394, in which case the same rule was applied in respect to proceedings on tax sales.

Had the justice been living, the. court might properly have allowed him to sign the jurat, if he could truthfully do so, as was done in Lederer v. C., M. & St. P. R'y Co., 38 Wis., 244. Then the record would show a sufficient affidavit of appeal. But the justice having died, it is impossible to supply the omission, and the appeal cannot be saved.

Counsel for plaintiff seem to think that, because the circuit court failed to get jurisdiction of the cause, the appeal to this court should be dismissed, the same being from a void judgment. In Spaulding v. M., L. S. & W. R’y Co., 57 Wis., 304, this court, for the purpose of avoiding an unjust result in respect to costs, was at first disposed to adopt the practice suggested, but on more mature consideration was constrained to adopt a different practice. It is now *220settled that an appeal from a void judgment will not be dismissed, but the judgment will be reversed. It is the fault of the statute (R. S., sec. 2949), giving costs to the prevailing party in this court, that the plaintiff must pay the costs of reversal when the error which works the reversal was committed against his protest and objection, at the instance of the other party. We are powerless to protect him.

This judgment must be reversed, and the cause will be remanded with directions to the circuit court to dismiss the appeal from the judgment of the justice.

By thó Court.- — 'Ordered accordingly.