Taylor v. Wilkinson

22 Wis. 40 | Wis. | 1867

PAINE, J.

We tbink it would be carrying tbe doctrine of Roberts v. Warren, 3 Wis., 736, and Brown v. Kellogg, 17 id., 476, one step too far, to bold tbat tbe justice lost jurisdiction by tbe clerical mistake of writing tbe letter P instead of M. We bold so upon tbe ground tbat if tbe A. P. were stricken out entirely, tbe time of tbe adjournment is designated witb sufficient certainty. It would tlien bave stood: “ Cause adjourned until October 11, 1866, at 10 o’clock,” etc. Tbis should be construed at 10 o’clock in tbe day time, and not 10 o’clock at night, an hour which every body knows is never designated as tbe time at which to commence tbe trial •of a suit.

Nor should the judgment of the justice be reversed because there is no entry on the docket showing tbat security for costs was filed, although an order appeared tbat it should be filed. There is nothing in the record to show tbat the plaintiff was a non-resident; but even if be was, the neglect to require security for costs is not jurisdictional. Conrad v. Cole, 15 Wis., 546. And a common law certiorari will only reach jurisdictional defects, such as arise either from an entire want of jurisdiction, or an excess of jurisdiction. Stokes v. Knarr, 11 Wis., 389. Here there was no want of jurisdiction, and no excess of jurisdiction; and consequently the objection cannot be reached by tbis writ.

It is very doubtful, also, whether, this question ought to he considered in this court, as it is not specifically assigned as error in the plaintiff’s petition; and it was stated by counsel that no such question was raised in the circuit court. It is true that the petition, after specially assigning several errors, contains the general clause usual at the end of all assignments, that there were other errors; irregularities' etc. But it has been held, in some cases, that this would be insufficient to enable the party to make any substantial objection not specifically assigned as error. Certainly it would seem that such new question ought not to be raised for the first time in the appellate court.

But, as in this case we are satisfied .that the objection is not such a one as could be reached by common law certiorari, we shall not pass upon the question of practice.

By the Court. — The judgment of the circuit court is affirmed, with costs.