Wattawa v. Jahnke

116 Wis. 491 | Wis. | 1903

Cassoday, C. J.

Counsel for the plaintiff is undoubtedly correct in claiming that the right of appeal from a justice of' the peace is purely statutory, and.that the statutes must be-substantially complied with, in order to give the circuit court jurisdiction. But we are clearly of the opinion that the appeal papers in question substantially comply with the statute-(sec. 3754, Stats. 1898). The notice gives the name of the court, the names of the respective parties, the date and amount: •of the judgment, and the party taking the appeal. True, tlie affidavit of good faith, on behalf of the defendant is not cn--titled; hut it is immediately below the notice of appeal, and upon the same side of the same sheet of paper, and states that it is on behalf of “the defendant in the above entitled,” and -that “the appeal mentioned in the foregoing notice is made in good faith, and not for the purpose of delay,” and hence shows that it was made in the same action and refers to the •same judgment as is mentioned in the notice. True, there may be several justices of the peace in Kewaunee county, and neither the notice nor the affidavit gives the name of the particular justice before whom the judgment was rendered; but such justice recited in his docket entries in the case that '“Fred Jalinke [the defendant and appellant] made and presented to me, the undersigned justice, notice of appeal, affi•davit of good faith, and undertaking in the above-entitled action.” The appeal papers appear to be a substantial compliance with the statute cited, and hence sufficient to give the circuit court jurisdiction. The following are a few of the adjudications in support of such ruling: Kearney v. Andrews, 5 Wis. 23; Bremer v. Koenig, 5 Wis. 156; Evangelical L. St. P. Gemeinde v. Koehler, 59 Wis. 650, 18 N. W. 476; Noall v. Halonen, 84 Wis. 402, 54 N. W. 729; Hender v. Ring, 90 Wis. 358, 63 N. W. 282; Neppach v. Jordan, 13 Oreg. 246, 10 Pac. 341; Lancaster v. McDonald, 14 Oreg. 264, 12 Pac. 374.

By the Court. — The order of the circuit court dismissing the appeal is reversed, and the cause is remanded for further proceedings according to law.