3 Wis. 310 | Wis. | 1854
By the Court,
The judgment of the County Court in this case must be reversed, because that court acquired no jurisdiction of it.
Section 228 of Chapter 88 of the Revised Statutes, prohibits an appeal unless an affidavit, stating that the appeal is made in good faith, &c., be presented
In this case no affidavit appears to have been made, nor was the recognizance originally entered into before the justice of the peace, approved by him. In deed, without consent by the appellee, or a justification under oath by the surety, the justice had no authority to endorse his satisfaction upon the recognizance.
In all cases of appeal from the judgment of a justice of the peace, if the requirements of the statute be not complied with, by filing the affidavit and recognizance in the manner and within the time prescribed by the statute, the appellate court should dismiss the appeal, for, if the prescribed acts be not performed, there is no valid appeal. The point has been decided in Clark vs. Miles and another, 2 Chand. 94 ; Brown vs. Pratt and Wood, 4 Chand. 32, and Clark & Rice vs. Bowers, garnishee &c., 2 Wis. R. 123.
We cannot construe the act of March 24, 1852, so as to give it an application in a case like the present one. A party obtains a judgment before a justice of the peace, for a sum sufficient to permit the opposite party to prosecute an appeal; if he choose to appeal within ten days by complying with the provisions of the statute on that subject, the judgment is inoperative; but if he fail to do so, the party who obtained the judgment may thereupon proceed to execution. Now if the act of March 24, 1852, should be deemed to extend to cases of appeal from justices of the peace whenever the party taking an appeal had failed to
In every case therefore, where a recognizance, such as the statute requires, is not filed with the justice “within ten days after judgment,” no appeal can be entertained; the right to appeal is gone, and the act of March 24, 1852, cannot cure the omission or enable the appellate court to take cognizance of the case.
The counsel for the defendant in error, very properly insisted at the bar, that a motion made in a case, is no part of the record, unless made so by a bill of exceptions, and in this case there has been no bill sealed. Under the twelfth section of chapter 104 of the Revised Statutes, where in the progress of the case, a motion is made requiring a judicial determination, and either party is dissatisfied with the disposition thereof, such party may allege an exception, and
But even without a bill of exceptions in a case like the present one, everything to show the jurisdiction of the County Court must affirmatively appeal*, and where there is a jurisdictional defect apparent to us, we cannot overlook it, although the party has neglected to show by a bill of exceptions that he sought to avail himself of the defect in the court below.
The judgment of the County Court is reversed, with costs.