Paulsen v. Ingersoll

62 Wis. 312 | Wis. | 1885

Cassoday, J.

The writ of certiorari brought up for review the record before the justice, and that only for the purpose of determining whether the justice had jurisdiction to render and enter the judgment complained of. Smith v. Bahr, ante, p. 244, and cases there cited. The record includes not only the necessary docket entries but the pleadings. Callon v. Sternberg, 38 Wis. 539; Cassidy v. Millerick, 52 Wis. 383. Obviousty, it also includes the affidavit for, and the warrant of, attachment and the return of the officer. For the same reason it includes the affidavit of Champagne, filed with the justice under ch. 273, Laws of 1882, making him a party defendant in the judgment which had previously been rendered against Ingersoll, and expressly authorizing him to appeal therefrom. For the purposes of this case, we shall assume that the right so given to appeal included the right to the writ of certiorari.

Such being the record, and the property seized being fully described in the complaint, we must hold that the judgment making the amount due the plaintiff from Ingersoll “a lien upon the logs described in the complaint,” sufficiently described the property thereby affected. In fact, it is the same description given by the respondent in his affidavit making himself a party, and the same as required by statute in actions of replevin. Sec. 3742, R. S.

The oral findings of the .justice, as written out after the judgment, and filed as of the time of the rendition of the judgment, were strictly in accordance with the statute. Sec. 3340, R. S., as amended by sec. 5, ch. 330, Laws of 1881, and sec. 5, ch. 319, Laws of 1882. Had the cause been tried by a jury, and the jury had agreed upon a verdict, the justice would have been required to “ enter the same in his docket, and enter judgment according to said verdict.” Sec. 3653, and subd. 9. sec. 3574, R. S. In that event, the verdict being necessarily entered in the docket, thereby would have become a necessary part of the record. But where the cause is tried by the justice, as here, and not tried by a jury, there is no statute requiring such justice to enter his findings in his docket. lie was bound in this case to find the facts required by the statute, in order to render the judgment he did. It certainly would- have been a very proper thing for him to have entered the same in his docket. The failure to make such entry before judgment may have been an irregularity; but we do not think it deprived the justice of jurisdiction. Varrell v. Church, 36 Wis. 318; Puncheon v. Hill, 38 Wis. 156. The case of Beemis v. Wylie, 19 Wis. 318, is clearly distinguishable. The justice is required to take full minutes of all evidence given before him on the trial of a cause, and file the same among the papers in the case. Sec. 3638, R. S. Such evidence is not, however, any part of the record, and cannot be inquired into on certiorari. Callon v. Sternberg, 38 Wis. 539; Cassidy v. Millerick, 52 Wis. 383; Smith v. Bahr, ante, p. 244; Baizer v. Zasch, 28 Wis. 268. So, here, the justice was required by statute to make certain findings, but he was not required specifically to reduce them to writing, much less to enter them in his docket. The omission may have been irregular, but upon the question of jurisdiction we must presume that previous to the judgment the justice in fact found what he then adjudged. Such presumption to support such jurisdiction certainly has judicial sanction. Bacon v. Bassett, 19 Wis. 45; Baizer v. Zasch, supra; Coffee v. Chippewa Falls, 36 Wis. 121; Storm v. Adams, 56 Wis. 137; Driscoll v. Smith, 59 Wis. 38.

By the Oourt.— That portion of the judgment appealed from is reversed, and the cause is remanded with directions to affirm the judgment of the justice.