Wearne v. Smith

| Wis. | Jan 15, 1873

DixoN, C. J.

It appears from the record that upon the trial of the action before the justice of the peace, the jury came into court with their verdict in writing at 11 o’clock, P. M., on the 20th day of March, 1872, whereupon the court received and filed the same, “and, it being so late, the court went home, and on the morning of the 21st of March, 1872, at 9 o’clock, A. M., the court, in. conformance to said verdict,” rendered judgment and entered the same in his docket. The question is, whether the justice lost jurisdiction of the action by his failure to render judgment forthwith on receiving the verdict, as required by the statute. R. S., ch. 120, sec. 160; 2 Tay. Stats., 1387, § 176. On common law certiorari to the justice, tbe circuit court beld be bad not, and affirmed tbe judgment. Tbis is an appeal from tbe judgment of tbe circuit court.

On looking into tbe decisions of tbis court, it will be found that tbe very most strict and literal construction bas been given to tbe provisions of tbis statute, making it imperative even upon justices immediately to render judgments on verdicts received on certain holidays, notwithstanding tbe prohibition of another statute (Laws of 1861, cb. 58, sec. 2; 2 Tay. Stats., 1842, § 20) declaring that no court shall be open or transact any business on such holidays, “unless it be for the purpose of instructing or discharging a jury, or of receiving a verdict.” McNamara v. Spees, 25 Wis., 589; Perldns v. Jones, 28 id., 243. It would seem to follow from the principle of the last decision, that a justice of the peace must proceed to render judgment on Sunday where the verdict is received on that day, since the language of tbe statute prohibiting tbe transaction of judicial business on tbe first day of tbe week is precisely tbe same as in tbe case of tbe holidays above referred to. R. S., cb. 119, sec. 19; 2 Tay. Stats., 1341, § 19. It is true that tbe courts of New York have construed tbe same statutes differently, and beld that judgment cannot be rendered on Sunday; but that rule cannot govern here. Allen v. Godfrey, 44 N.Y., 433" court="NY" date_filed="1871-05-01" href="https://app.midpage.ai/document/allen-v--godfrey-3598273?utm_source=webapp" opinion_id="3598273">44 N. Y., 433. The strict, unbending construction already given must be adhered to, until changed by legislative action. I must confess I am not fully satisfied with tbe rule, nor have I ever been with tbe severity of construction, which bas prevailed in tbis court, of statutes regulating and connected with proceedings bad or pending before justices of tbe peace. See Chinnoch v. Stevens, 23 Wis., 396" court="Wis." date_filed="1868-06-15" href="https://app.midpage.ai/document/chinnock-v-stevens-6600070?utm_source=webapp" opinion_id="6600070">23 Wis., 396. Still, a construction having once been given to a statute, I am not in favor of changing it otherwise than by act of the legislature.

It follows very clearly, I think, from tbe cases cited, that the justice here lost jurisdiction of tbe action. It follows from them that nothing, neither hunger, nor thirst, nor weariness, nor want of sleep, nor pain, nor sickness, nor beat, nor cold, nor religious scruples, nor any earthly thing, shall^ excuse the justice for not rendering judgment inslanter on receipt of the verdict. He must do so without delay, and as the very next act by him performed, or all jurisdiction is gone. The rule has this advantage, which I admit is no slight one, of the utmost certainty in its application. But, as appears from McNamara v. Spees, and authorities there cited, this urgent duty of the magistrate is attended by at least one circumstance of alleviation. He is only required to render judgment instantly, but not to enter it in his docket. The former, being the judicial act, must be performed at once; the latter, the ministerial, may be done afterwards. The former is done by pronouncing judgment in words audible to the parties and bystanders, as by saying in a voice capable of being heard: “I render judgment on this verdict in favor of the plaintiff and against the defendant, for the damages found by the jury and the costs of suit.” The judgment thus rendered may be subsequently entered in the docket, and the costs taxed, without affecting its validity.

By the Court — The judgment appealed from is reversed, and the cause remanded with directions to enter judgment reversing that of the justice.

ETON, J., dissents.