PiNNey, J.
By the statute (sec. 4654, R. S.) it is provided that “no information shall be filed against any person for any offense until such person shall have had a preliminary examination, as provided by law, before a justice of the peace or other examining magistrate or officer,” unless the accused waives such right; but the objection for such failure or omission can be taken advantage of only by plea in abatement, as in this case, before pleading to the merits. An information lies only after a legal examination, unless it has been waived. Martin v. State, 79 Wis. 165, 171. An examination regularly and. properly conducted under the statute serves in some sort for the inquisition or finding of a grand jury. The statute regulating such examinations secures certain rights to the accused, among which is the right, under sec. 4809, to have his case removed, upon filing a proper affidavit of prejudice of the magistrate before whom it is pending, “ to the nearest justice or magistrate qualified by law to conduct the. examination, who shall proceed with the examination,”' etc. This is an important and substantial right, of which the accused cannot be deprived except by his own act; and, as examining magistrates derive their jurisdiction and authority to proceed in such cases entirely from the statute, it is plain that an examination such as is required in order to justify the filing of an information cannot take place in any case where the right of removal has been improperly denied.
The filing of the affidavit defeated the' jurisdiction of Commissioner Wentworth, leaving him only to determine by his order what justice or magistrate was in fact the nearest; Jurisdiction of the case could only be acquired by any other justice or magistrate in the manner specified *31in the statute. Had he ordered the case removed “ to the nearest justice or other magistrate,” designating him, as the case might be, we think it well settled that no issue could be made as to whether there was not in fact some justice or other magistrate nearer than the one thus designated. Martin v. State, 79 Wis. 165, 173; Tennis v. Anderson, 55 Iowa, 625; Bremner v. Hallowell, 59 Iowa, 433. But the order of Commissioner Wentworth did not meet the legal exigency of the case. lie sent the case “ to E. B. Belden, he being the nearest court commissioner.” This he had no right to do. The law did not authorize it, unless he was the “ nearest justice or other magistrate; ” and his order is by no means a determination to that effect, but it conveys, by strong implication, quite the contrary conclusion,— that Belden was not the nearest justice or examining magistrate, but only the nearest of a certain class of magistrates having jurisdiction, in such cases. The com-, missioner seems to have proceeded on the erroneous assumption that the case, having been commenced before a court commissioner, had already become a criminal action pending in the circuit court, and that therefore no examining magistrate or officer not having the powers of a judge at chambers could take jurisdiction of it, and hence it could not be transmitted to Mr. Upchurch, a justice of the peace nearer than Commissioner Belden. Proceedings for the arrest and examination of offenders and commitment for trial, under ch. 195, R. S., are not, technically or properly speaking, proceedings in any court. They are proceedings before certain officers, known to the law as magistrates, for the purpose of carrying out the provisions of this chapter; and these are “ the judges of the several courts of record, in vacation as well as in term time, court commissioners, and all justices of the peace,” who are authorized to issue process to carry it into execution. R. S. sec. 4775. When a case under the statute is to be removed on the *32ground of prejudice of the magistrate before whom it is pending, it is his duty to send the case to such magistrate of either of the classes named in sec. 4715 as shall he nearest, qualified by law to conduct the examination. Error of fact in determining which is nearest will not defeat the jurisdiction of the magistrate to whom it is sent; but where the error, as here, was one of law, going to the jurisdiction of the magistrate, it is fatal to the proceeding. The distinction upon which the case turns is, as stated by Paine, J., in Wanzer v. Howland, 10 Wis. 14, “between the finding of such facts and the decision of a court that, as a matter of law, it has jurisdiction where it has none; because in the one case it has authority to try the facts, in the other it has no authority at all, though it decides that it has.” Had Commissioner Wentworth stated in the record that Commissioner Belden was “ the nearest justice or magistrate,” instead of the nearest court commissioner qualified by law to conduct the examination, his finding in that respect could not be traversed or questioned in the action; but, in the absence of such finding, the question whether Upchurch or Belden was the nearest justice or magistrate was open to proof.
Eor these reasons the defendant did not have an examination such as the law secured to him before the information was filed, and no judgment could lawfully be given on the information, except to abate or quash it.
By the Court.— The questions submitted are both answered in the affirmative.