State ex rel. Green v. Van Ells

69 Wis. 19 | Wis. | 1887

The following opinion was filed March, 1, 1887:

Cole, C. J.

The peremptory writ issued commanding and directing the appellant to make an entry in his docket of an adjournment, after the rendition of the verdict, in the suit named, which had been tried before him as a justice of the peace. But the appellant in his return to the alternative writ distinctly denies that any such adjournment was ever made; and the fair inference from the docket entries, which are made part of the return, is that the justice rendered judgment upon the verdict without any adjournment. The entry is: “The jury returned a verdict as follows: ‘We, the jury, find for the plaintiffs.’ Whereupon the court rendered judgment against the defendant; and it is hereby ! adjudged that the plaintiffs do recover from the defendant the sum of $8.85,” etc. True, the word “vehereiopon” is not definite as to time; but, taken in connection with the statement of the justice, the conclusive presumption is that judgment was rendered on the verdict without an adjournment. The entries of the justice in his docket import verity, and they cannot be contradicted or impeached by the statements of the justice himself, even on matters of jurisdiction. Cassidy v. Millerick, 52 Wis. 379; Smith v. Bahr, 62 Wis. 244. So it appears that the peremptory writ directed the justice to make a docket entry which was not according to the truth of the matter, or the real facts of the case. It is needless to say that this was an unwarranted use of the writ. This court has held that a justice could be compelled by mandamus to make correct- docket entries in conformity to the real facts. State ex rel. Marsh v. Whittet, 61 Wis. 351. But that is quite a different matter from the case before us. Both in the relation and in the reply to the return the relator states that the cause was adjourned from the evening of the 24th of June to 10 o’clock a. m. the next day. But this is positively denied by the appellant in his return, and it does not appear that evidence wras taken to show the return was incorrect. On this state of proof the peremptory writ was not justified; but, on the contrary, the alternative writ should have been quashed.

Counsel have argued the question whether the judgment rendered on the verdict was such as the law authorized. It is plain that this question does not arise and cannot be decided in this proceeding. This is confined to the simple question whether the appellant should be compelled to enter in his docket an adjournment after the verdict was rendered. Upon the record as it now stands we are clearly of the opinion that the appellant should not be required to do this.

The finding of the court below is that the appellant did not, on the receipt of the verdict, forthwith pronounce or render judgment on such verdict as required by law, but did orally and publicly announce an adjournment of the cause for the rendition of a judgment on the verdict to 10 o’clock in the forenoon of the next day. It does not appear upon what this finding is based. It is not claimed that the issues of fact made by the pleadings were tried by introducing witnesses to prove or disprove them,— even if such a practice would be regular, a question we do not decide. We presume the trial was of the issues of law raised by the relation, return, and answer, and on the application for the peremptory writ. Under the circumstances we do not feel concluded by the above finding.

.We think the order of the circuit court must be reversed, and the cause be remanded with directions to quash the alternative writ and dismiss the proceedings.

By the Court.— Judgment accordingly.

Upon a motion for rehearing J. E. Wildish, for respondent, argued that in mandamus proceedings a justice’s docket does not import verity.

The motion was denied June 1, 1887.