Dykens v. Munson , 2 Wis. 245 ( 1853 )

Py the Gowrt,

Whitob, C. J.

This was an action of replevin, commenced before a justice of the peace. ‘ In the justice’s court, the plaintiff obtained a judgment, and the justice ordered the property to be delivered to him, pursuant to the statute.

The defendant in the suit before the justice, (Mun-son,) took the case to the County Court of Sauk county, by a writ of certiorari, where the judgment of the justice was reversed, and a judgment rendefed in his favor, for the sum of eighty dollars, (the value of the property replevied,) and his costs. The plaintiff in error seeks to reverse this judgment, for the reason that the County Court had no authority to render a judgment for the value of the property. He contends, that the judgment rendered by the justice, should have been either affirmed -or reversed, “in whole or in part,” and no new judgment given in favor of either party. This was the decision of the Supreme Court, in the case of Phillips vs. Geesland, 1 Chand. R. 57, under the statute then in force; but it is contended by the defendant in error, that, by the present statute, (Rev. Stat., chap. 88, sec. 223,) power is given to the County Court to render such a judgment as ought to have been 'rendered by the justice upon the testimony. The statute provides, that the County Court “ may affirm or reverse the judgment in whole or in part; and may make any such final or judgment as lie shall deem proper, in fur therance of justice.”

It is to he observed that courts of law, to which cageg are reinovecj by writs of certiorari, for the purpose of correcting errors that may have been committed, have not generally the power to do anything more than to affirm or reverse the judgment of the court from which the case comes, in whole or in part. Unless, therefore, the Legislature have clearly given to the County Court the power to render such a judgment as the judge shall think the testimony warrants, the power to do so does not exist. Particular importance's given by the defendant in error, to the words “ and may make any such final order or judgment as he shall deem proper in furtherance of justice.”

We think this paragraph should not receive such a construction as to authorise the judgment which was rendered by the County Court. On the contrary, we are of opinion that it does not confer any new power upon the court, but merely repeats in another form, for greater caution, the power conferred in the previous part of the section. (Sheldon vs. Quinline, 5 Hill's R. 440.) The County Court therefore erred in giving a judgment in favor of the defendant, for the value of the property, and for that error the judgment must be reversed.

We have disposed of this case upon the point dis cussed by the counsel of the parties, without noticing an insurmountable objection to the judgment, arising from a want of jurisdiction in the County Court. We held, in the case of McCaffrey vs. Nolan, 1 Wis. R. 361, that where in an action of replevin tried by a justice of the peace, the plaintiff obtained possession of property exceeding in value the sum of $15, or when the value of the property obtained by the plaintiff, and the damages recovered by him, together, exceed ed that sum, an appeal and not a certiorari was the proper, mode, to remove the case to the County Court. In that case, wc held that the County Court did not obtain jurisdiction of the case by certiorari, and for that reason reversed the judgment.

In this case the plaintiff, by the decision of the justice, obtained possession of property of the value of $80, and the defendant should have taken the case to . the County Court by appeal.

Judgment reversed.