27 Wis. 462 | Wis. | 1871
This is a kindred case to that of Owens, plaintiff in error, v. The State, defendant in error, just decided [ante, p. 456]. It was a prosecution, for assault and battery, charged to have been committed within the limits of the city of Mineral Point, in the county of Iowa, before a justice of the peace of that
The objection now taken, and upon which we decide the case, was raised in this court for the first time. It is, that it was not a case of the absence, sickness or other inability of the municipal judge, which authorized the justice to assume jurisdiction. It is said that the municipal judge arbitrarily, and without any of the causes specified in the statute, refused to entertain the case, and that this did not and could not confer jurisdiction upon the justice. We are of the opinion that this objection is well taken, and that it is not too late to be presented at the hearing upon this writ. It is a general rule, that objection for want of jurisdiction of the subject-matter of an action may be taken at
And this suggests the distinction with respect to the effect of an appeal, in civil actions, between a want of jurisdiction of the subject-matter and a want of jurisdiction of the person, because of some defect in the issuing or service of process. Objections of the latter kind are waived by an appeal, which is equivalent to an appearance; but not those of the former kind. Lowe v. Stringham, 14 Wis. 225, and cases cited; Barnum v. Fitzpatrick, 11 Wis. 83; Caughey v. Vance, 3 Chandler, 308. Whether the same rule as to waiver or appearance is applicable at all in criminal actions, is not a question now before us.
It follows from these views, that the judgment of the circuit court, affirming that of the justice, must be reversed, and the cause remanded with directions to
By the Court. — It is so ordered.