87 Wis. 292 | Wis. | 1894
1. There is no defect of substance or form in the writ of certiora7’i in this case, and it was properly
2. The record of the justice on the question of jurisdiction involved imports absolute verity, notwithstanding contradictory statements made in the justice’s return. Cassidy v. Millerick, 52 Wis. 379; Smith v. Bahr, 62 Wis. 244. The paper returned with the transcript of the docket of the justice shows that both defendants applied for a removal of the case; but the transcript of the docket entry shows that only one of them so applied, and that the court refused the removal “ on the ground that the affidavit of prejudice is signed only by the defendant Mary E. Cameron,, and is made on her behalf only.” The entry of the appearance and answer of the defendant Mrs. R. L. Fatz-inger follows immediately after this entry. The record of the justice is made up with clearness and certainty, and shows that he was not deprived of jurisdiction by the application for removal. He makes no mention of the written demand of removal which appears among the papers, and it is possible that his attention was not particularly directed to it. We cannot indulge, however, in any presumption or inference against the record, drawn from loose papers now attached to the return. In the case of Hellriegel v. Truman, 60 Wis. 253, the defect of jurisdiction was plain, and it appeared clearly and decisively from the record that, although the affidavit was made by only a part of the defendants, all of them, five in number, demanded a removal; and the same remark is true of the other cases cited by respondent’s counsel.
By the Court.— Judgment is ordered accordingly.