McNamara v. Spees

25 Wis. 539 | Wis. | 1870

Paine, J.

The judgment of the circuit court dismissing the writ of certiorari was improper. There is no pretense that it was not regularly and properly issued and returned. And this being so, if, upon the hearing, it appeared that the action of the justice of the peace was legal, his judgment should have been affirmed, instead of dismissing the writ. Strictly speaking, the appeal from that judgment brings up only the question whether there was an irregularity in practice in the proceedings on the writ in the circuit court, justifying such dismissal/

But as that form of judgment appears to have been adopted as proper where there appeared no reason for reversing the judgment of the justice, and the merits were fully argued, we have considered them, and come to the conclusion that his judgment ought to have been reversed-; for the reason that he lost jurisdiction by not rendering judgment forthwith, as the statute requires, on-receiving the verdict. He adjourned over from Saturday night until Monday afternoon. This cannot be held a compliance with the statute. One of the cases referred to in the statute (sec. 160, ch. 120), in which the judgment is required to be rendered forthwith, is where the defendant is in custody at the hearing of the cause ; and - the object of this provision clearly shows that the legislature intended jnst what they said, that the judgment should be rendered at once. Otherwise the prisoner might be kept in custody, to suit the convenience of'the justice, for a considerable length of time after he was entitled to be discharged. It may be said to be a strict rule, but, if so, it is because the legislature chose to establish such a rule. And although courts sometimes attempt to modify the stringency of statutes by construction, yet the difficulty would be, if we felt at liberty to make any such attempt, to know where to stop. If the justice may pass beyond the statute and neglect to render judgment forthwith, how long may he so neglect ? If he may adjourn one day, why not two, three, or more ? We have no disposition to attempt to assume the functions of the legislature, and to prescribe new regulations upon this subject. The statute is positive and clear, and is the only measure of the powers of justices of the peace. It has repeatedly been held that by a neglect to comply with such provisions they lose jurisdiction. It may be that if the. justice had rendered judgment forthwith, his neglect for a longer time to comply with the further provision to enter it in his docket would not affect its validity. It was so held in Hall v. Tuttle, 6 Hill, 38. But that case, like all the others, plainly implies that the neglect to perform the judicial act of rendering the judgment, beyond the time prescribed by the statute, deprives him of jurisdiction.

By the Court. — The judgment dismissing the writ is reversed, and the cause remanded, with directions to enter judgment reversing that of the justice.