State ex rel. Haeselich v. Schweitzer

131 Wis. 138 | Wis. | 1907

Winslow, J.

Tbe appellant, Schweitzer, commenced an-action for unlawful detainer against tbe relator, Haeselich,. before a justice of tbe peace, and obtained judgment of restitution of tbe premises, with costs and $10 for rent due. Thereupon Haeselich sued out a writ of certiorari, to which return-was duly made, and after trial thereon tbe circuit court reversed tbe justice’s judgment, and Schweitzer appealed.

Three alleged jurisdictional defects were specified in the-petition, and these will be briefly considered.

1. It appears that tbe summons issued was not in tbe form prescribed by sec. 3362, Stats. (1898). However, it further appears from tbe docket of the justice before whom the action was commenced that on tbe return day of the summons at the-hour named therein all parties were present “in court.” This is equivalent to a statement that all parties appeared. Brandies v. Robinson, 45 Wis. 464. A general appearance is a waiver of defects in tbe form or service of process. Lowe v. Stringham, 14 Wis. 222; Fulton v. State ex rel. Meiners, 103 Wis. 238, 79 N. W. 234.

2. It is objected that tbe justice before whom tbe action was commenced did not wait one hour after calling the case for the appearance of the parties, as required by sec. 3623, Stats. (1898), hut immediately transmitted the case to the next nearest justice on account of kinship to the appellant.' There are at least two sufficient answers to this objection, viz.:

(1)‘ The docket shows that the case was called at 9 o’clock a. m., which was the hour named in the summons, and that the papers were not transmitted until 10:01 o’clock a. m.;

(2) the justice was hot required to wait an hour in case the parties sooner appeared. Sec. 3623, supra; Brandies v. Robinson, supra.

3. The relator did not appear before the justice to whom the case was transferred, and that justice, after receiving the papers, adjourned the case on plaintiff’s motion for three days. Sec. 3365, Stats. (1898), specifically provides that the justice may, “in his discretion,” adjourn the trial of the action, but not beyond six days after the return day of the summons. The fact that the plaintiff moved for such adjournment did not deprive the justice of'his discretionary power. Therefore the record shows no loss of jurisdiction by the adjournment.

We have been referred to no statute authorizing the justice to render judgment for unpaid rent in such an action, but as this matter was not set forth in the petition for the writ as a-jurisdictional defect it is not to be considered. Tourville v. S. D. Seavey Co. 124 Wis. 56, 102 N. W. 352.

By the Court. — Judgment reversed, and action remanded with directions to' enter judgment affirming the judgment of the justice.