Tbe village of Randolph was incorporated in 1870, embracing territory situated in tbe counties of Columbia and Dodge. Ob. 114, P. & L. Laws of 1870. Tbe charter divided the village into two wards; tbe East ward including tbe territory in Dodge county, and tbe West ward including that in Columbia county. Sec. 2. Tbe charter further provides that there shall be two justices elected in tbe village, who shall bold their offices for two years; “ one of said justices shall be a resident of tbe West
R. D. Calkins, a justice of tbe peace in and for tbe East ward, issued a summons which was served by tbe constable of tbe village upon tbe defendant, Sawyer, in tbe city of Columbus, in Columbia county. On tbe return day of the process tbe defendant appeared specially, and made an application, founded on an affidavit, for a removal of tbe cause on tbe ground of prejudice of tbe justice. Thereupon tbe papers were transmitted to John G. Griffin, a justice of tbe town of Courtland, in Columbia county. Tbe defendant appeared specially before Justice Griffin and objected that be bad no jmisdiction of tbe cause, and that it should have been sent to tbe nearest justice in Dodge county; also because Justice Calkins, in tbe papers transmitted, bad failed to insert tbe name of Justice Griffin, but bad left tbe blank unfilled. Justice Griffin overruled these objections and retained tbe cause. He also allowed Justice Calkins to insert bis (Griffin’s) name in tbe papers transmitted, against tbe defendant’s objection. Tbe plaintiff made bis complaint, to which tbe defendant filed no answer, but withdrew from all further appearance in tbe cause. Tbe plaintiff obtained judgment, and tbe cause was taken to tbe circuit court of Columbia county on a common-law writ of certiorari. Tbe decision in that court being adverse to tbe defendant, tbe case has been brought here for review.
In Falk v. Goldberg, 45 Wis. 94, a strictly analogous question was presented, and this was the view expressed as to the power of the legislature on this subject. In that case the legislature had provided for the election of a justice of the peace in a city composed of the territory of two counties. This court held that an appeal would lie from a judgment of such justice to the circuit court of either county; that the circuit court which first acquired jurisdiction of the appeal would retain it to the exclusion of the other. The principle there involved is substantially the same as in the case at bar. It follows from this view that it was entirely legal for Justice Calkins, though he lived in Dodge county, to send the cause for trial to the nearest justice, though the latter justice lived in Columbia county. Also that it was not even error because the venue in the process was laid in “ Dodge and Columbia counties.”
We find in the record what appears to be two judgments: One dated July 12, 1884, simply affirming the judgment of the justice, with costs, which is correct in form. The other judgment, which was probably entered by the clerk, is dated July 19, 1884, affirming the justice’s judgment, and further ordering and adjudging that the plaintiff recover of the defendant the sum of $14.99 damages, and $25.07 costs and disbursements. This last judgment is entirely irregular if there had been no previous judgment. On certiorari the circuit court is only authorized to affirm or reverse the judgment of the justice, with costs. It has no authority to give a new judgment for damages as was done in this case. This point has been frequently decided by this court. See late case of Smith v. Bahr, 62 Wis. 244.
The judgment of the circuit court must therefore be reversed, and the cause be remanded with directions to that court to enter a judgment affirming the judgment of the justice, with costs.
By the Court. — It is so ordered.