29 Wis. 202 | Wis. | 1871
The cases of State v. Doane, 14 Wis., 483, and Barteau v. The City of Appleton, 23 id., 414, are decisive of this appeal, and show that the judgment of the circuit court must be reversed. Both were actions lite the present, commenced before a justice of the peace to recover a forfeiture under the statute for the obstruction of a highway. In the former the defendant answered, as was done in this case, but in writing, denying the existence of the alleged highway, and aver-‘ing that the premises in question were his land and freehold, and in his possession. The defendant there entered into the bond prescribed by sec. 52, ch. 120, R. S., and the case was therefore certified by the justice to the circuit court; and this court sustained the proceeding as correct. In the latter case, the defendant made like answer in writing, but gave no bond, and it was decided here, that, failing to do so, he was, under section 53 of the same statute, precluded from going into the question of title in his defense, or disputing the existence of the highway on the trial before the justice. In this case, the answer of the defendant, denying the existence of the highway, or that it was ever laid out and opened, and alleging that the locus in quo was the land and.property of the defendant, and in his possession and occupancy, was, as appears from the return of the justice to the writ of certiorari, oral, and not reduced to writing, as required by section 51 of the statute. It would seem that such an answer cannot, under any circumstances, be regarded as sufficient to raise an issue of title to lands, and so to oust the jurisdiction of the justice. But, if this were not so, the failure to give the bond for the removal of the cause to the circuit court operated as a waiver of any defense involving an inquiry into
Tbe result, therefore, is, where no bond is delivered, that' tbe defense of title in tbe defendant, or, what is tbe same thing that there is no sucb highway as tbe plaintiff alleges, is abandoned, and tbe case remains for trial before tbe justice upon tbe issue of encroachment or not, and sucb other issues as may be presented by tbe pleadings, excluding, of course, tbe supposed issue as to tbe existence of tbe highway, and as to the right of the defendant to bold or occupy tbat portion of it, tbe obstruction of wbicb is complained of, should tbe fact of obstruction be made out. Tbe omission of tbe defendant to enter into tbe bond must, as was tbe effect of tbe decision in Barteau v. The City of Appleton, and as we still regard tbe true intent and meaning of tbe statute, - operate as an admission on bis part that there is sucb a highway as is alleged in tbe complaint, and tbat be has no right of possession or occupancy in it, thus limiting the issue to a matter wbicb tbe justice has jurisdiction to try, namely, whether tbe highway has been unlawfully encroached upon or obstructed by tbe defendant, and to sucb other points of inquiry as may be incidentally connected with this principal one. In this case, therefore, tbe justice bad jurisdiction, and tbe issue before him stood as if all tbat part of tbe answer denying tbe existence of tbe highway, and alleging title and'right of'possession of tbe premises in tbe defendant, bad been stricken out. Tbe question before him was merely one of encroachment, and whether tbe order of removal bad been made, and a copy served on tbe defendant, as alleged in tbe complaint, and perhaps, also, whether tbe highway was one wbicb had been laid out and opened. The action was instituted under tbe provisions of sections 102 and 103, cb. 19, R. S. It is contended by counsel for the defendant tbat tbe forfeiture prescribed by section 103 can be recovered only where, in the
It seems to be supposed by counsel for the defendant, that this was a case falling within the provisions of section 56 of chapter 120, above cited, and where the action ought to have been dismissed by the justice, because it appeared on the trial before him, from the plaintiff’s own showing, that the title to lands was in question, which title was disputed by the defendant. It follows, from what has already been said, that this position is unfounded. But section 56 was obviously never intended to apply to such a case, or to any case where the question of title to lands is or may be directly put in issue by the pleadings. It was intended to provide for a different class of cases, where no such issue is or can be directly made in pleading; such, for, example, as trespass to goods and chattels, or trover, or other similar actions, involving the title to personal property, and in which the title of real estate may incidentally come in issue; as, if the action be for the taking or conversion of wood or timber previously cut or removed from land, and it becomes necessary, in order to maintain his action and show title to such property in himself, for the plaintiff to establish his title to the land. Many such cases arise, where the plaintiff is required to
This being an appeal from the judgment of the circuit court in a proceeding in that court upon a common law writ of cet'tiorari, issued to the justice, it follows that only jurisdictional errors and defects are to be investigated. The circuit court could not look into the record or return of the justice to see whether there were any errors of a different kind committed, as, for instance, to ascertain whether there was sufficient proof that the highway had been laid out or opened, or that the order 'to remove the obstruction had been properly made and served. It was not the office of the writ to correct such errors and imperfections, if any such existed, as the defendant had another remedy. Owens v. The State, 27 Wis., 456, and cases there cited. And this court can only examine the proceedings as the circuit court could do, and, it appearing from the pleadings and issue before the justice that there was no want of jurisdiction in him to try the cause and render judgment, it follows that the judgment of the circuit court must be reversed, and that of the justice affirmed.
By the Court It is so ordered.
