Norwich Pharmacal Co. v. Abaly, 133 Wis. 530

Norwich Pharmacal Co. v. Abaly

133 Wis. 530 | Wis. | 1907

MaRshall, J.

The sole proposition presented for consideration here is that the court had no jurisdiction to try the cause de novo for want of a proper affidavit under sec. 3767 and sec. 3768, Stats. (1898), providing that an action carried to the circuit court on plaintiff’s appeal from a judgment for less than fifteen dollars shall only be tried de novo in the appellate tribunal in case the plaintiff at the time of appealing makes “an affidavit that he has a valid claim, as he verily believes, against the defendant, as set forth in his complaint, exceeding the sum of fifteen dollars.”

*532That there was no jurisdiction to try this case, as was done, and that a failure to object, or even an express stipulation consenting, would not have conferred jurisdiction precluding the judgment from being successfully attacked on appeal, unless the proper affidavit was made, is ruled by Bullard v. Kuhl, 54 Wis. 544, 11 N. W. 801, and Gruetzmacher v. Wanninger, 113 Wis. 34, 88 N. W. 929, and other cases.

The arguments of counsel take quite a wide range. We do not deem, it advisable to follow the same in all particulars or to discuss the points presented at any great length.

Obviously, the law was intended to provide for appeals by corporations as well as by natural persons and contemplated the making of the prescribed affidavit where necessary.

Uniformly it is held that a statute of a general nature of the character of the one under consideration includes corporations though the words “person” and “he” and similar designations, in their literal sense pointing to natural persons only, are used. 6 Thomp. Oorp. § 1468. In case of a corporation, as the same authority holds and as must necessarily be the case, the act involved must be done by one representing the party and authorized to do so. Probably it would be presumed that an executive officer or managing agent of a corporation- possesses the requisite authority to make the affidavit in question, but it cannot be doubted that one not such an officer or agent may make it, if expressly or impliedly authorized to do so and the instrument specifies that he has authority, as is the case here. The language of the affidavit, “and is authorized by said plaintiff to make said affidavit,” sufficiently asserts corporate authorization in the matter. ‘

By the Court. — The judgment is affirmed.