Verbeck v. Verbeck

6 Wis. 159 | Wis. | 1858

By the Coivrt,

Whitost, C. J.

We shall not discuss all the questions argued by the counsel for the parties in this case, because we are satisfied that the Circuit Court did not acquire jurisdiction of it, and that for this reason, the judgment must be reversed. The statute provides that in every action commenced before a Justice of the Peace', 'when the title to lands shall in any wise come in question, the defendant, at the time when he is required to join issue, may plead specially any plea showing that the title to lands will come in question;. ox’ may, under the general issue, give notice to that effect. At the time of tendering such plea, or plea and notice, the defendant must also enter into a bond to the plaintiff, with security, in the penal sum of two hundred dollars, conditioned that if the plaintiff shall prosecute his suit in the county, (now Circuit,) Court, and if judgment be rendered against the defendant, on his plea of title, he will pay the amount of such judgment, with costs.

TJpon filing the plea and bond, the justice is to certify the case to the Circuit -Court, which thereby becomes possessed of the case with power to proceed therein to final judgment in the same manner as though the suit had been commenced iix that court. Rev. Stat., Chap. 88, § 52, 53, 54, 55, 65. It will be seen that these proceedings all depend upon the fact that the plea or notice shows that the title to lands will come in question. Unless this fact appears, the justice has no authority to certify the case to the higher court. Now, the notice which the defendant appended to his plea of the gen-ei’al issue disclosed no such fact.

The action was trover for the conversion of thirty-nine bushels of wheat, thirty-two bushels of rye, and eighty bushels of oats. The fact stated in the notice that the stacks of grain in' the plaintiff’s declaration mentioned were upon the soil and freehold of the defendant, was entirely immaterial. This might be true, and yet the plaintiff’s right to the grain be perfect. We do not see how the fact that personal property is situated upon the land of the defendant can determine the right of the parties to it. The fact stated in the notice that the defendant owned the land upon which the grain was situated, did not show that the title would- be drawn in question on the trial of the suit.

Ve therefore think that the justice should have proceeded to try the case, and that the Circuit Court did not obtain jurisdiction of it by the action of the parties and the justice.

But it is claimed by the defendant in error, that as the Circuit court had jurisdiction of the subject matter of the suit, and as the appearance of the parties before that court gave it control of them, the court was correct in retaining the case and deciding it on its merits. This argument would be entitled to great weight did it not involve a palpaple evasion of the statute. That has prescribed the manner in which cases which are commenced before Justices of the Peace, shall be taken to the higher courts, and we cannot sanction a practice' which does not comply with it. Dykeman vs. Budd, 3 Wis. R., 640.

It is claimed on the part of ,the defendant in error, that as the defendant before the justice, after filing his plea and notice, executed his bond conditioned to pay the judgment which the plaintiff might recover against him in the Circuit Court, he is now estopped to set up a want of jurisdiction in the court. This might be conclusive against the plaintiff in in error if the action was upon the bond, but it cannot be relied upon to show that the Circuit Court had jurisdiction of the case. Love vs. Rockwell, 1 Wis., 382.