Witt v. Henze

58 Wis. 244 | Wis. | 1883

Lyon, I.

Under repeated decisions of this court, the failure of a justice of the peace to enter in his docket the place, as well as the time, to which a cause pending before him is adjourned, defeats his jurisdiction (unless the parties voluntarily appear in the action subsequently), and renders all subsequent proceedings therein void. Brahmstead v. Ward, 44 Wis., 591, and cases cited.

In reviewing, on certiorari, the proceedings and judgment of the justice, the circuit.court can ascertain what the justice’s docket contains only by having before it a regularly certified copy of such docket. In this case the record contains no such copy. The certificate of the justice is that the paper which the court manifestly accepted as a copy of the docket “ is a true transcript of my docket and all the papers in the case.” Whether the entry of the adjournment contained in such transcript was taken from his docket or from some other paper in the case does not appear. On the record before it the circuit court could not properly determine that the justice failed to enter in his docket the place to which the cause was adjourned. The judgment of the circuit court must therefore be reversed. If the defendant desires it, that court should order a further return. Besides the want of a proper certificate, the record contains no order for a further return, and the transcript, although found ■with the record returned here, is not addressed to the circuit court, and there is nothing to show who delivered it to the clerk of that court, or how it came in this record. It seems little better than a fugitive pa.per, uncalled for, unauthorized, and wanting identification, which, in some unknown way, has crept into the record. To rest a solemn judgment of the court solely upon such a paper is entirely inadmissible.

A party can scarcely be misled by the failure of the justice to enter in his docket the place to which a cause is adjourned, especially when it is adjourned (as in this case) at the office of the justice; and it is a very technical rule which •holds the judgment of the justice absolutely void if he fails to enter the same in his docket. Hence, it is not unreasonable to require the return of the justice to show such failure clearly and unmistakably before a judgment is reversed for that reason alone. The party who relies upon a technical error to avoid a judgment against him must be held to strict rules in making the error manifest to the court.

The writ of certiorari herein is informal in that it contains no express mandate to the justice to return the record in the ■cause, but sufficient appears in the writ to apprise the justice that he was required to do so. Inasmuch as there is no .statutory form of a common law writ of certiorari prescribed, this writ is, we think, sufficient.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for further proceedings according to law.