Nett v. Serwe , 28 Wis. 663 ( 1871 )

LyoN, J.

This action was commenced before a justice of the peace of the county of Fond du Lac, by the defendant in error, against the plaintiffs in error, and was removed by the latter, under the statute, to another justice, who tried the same, and rendered judgment therein as follows: “ The court is of the opinion that the plaintiff has no cause of action. Judgment against the plaintiff for costs of suit. Costs, $13 31.” The original complaint of the plaintiff below claimed but nine dollars damages; but he was allowed by the justice to amend it by increasing his claim to $44. The answer consisted of the general denial and a counterclaim or set off on an account.

Tbe plaintiff below appealed from sucb judgment to tbe circuit court; and, after a variety of proceedings in tbat court, running through three terms, there was a trial, and the plaintiff below had a verdict and judgment for some sixteen dollars and costs. It should be stated that the necessary affidavit was made when the appeal was taken, to entitle the plaintiff below to a trial in the circuit court as in a case originally brought in that court. E. S., chap. 120, sec. 217.

The defendants below have removed said judgment against them to this court, by writ of error, for review.

I. It is claimed on behalf of plaintiffs in error, that the judgment which the justice attempted to render, is entirely void; that it is not in fact a judgment at all, and hence there was nothing to appeal from.

II. It is further claimed that there is no valid appeal; that the attempt to take an appeal was entirely ineffectual to accomplish that purpose, because of certain alleged failures to comply with the requirements of the statute providing for appeals from judgments rendered by justices of the peace.

It is apparent that if either of these positions is well taken, the circuit court had no jurisdiction of the subject matter of the action, and that its judgment must necessarily be reversed.

It is objected that the papers which have been returned to this court, and which purport to be the papers and proceedings in the action before the justice, were not filed either by the justice or the clerk of the circuit court, and that there is no evidence that the same are what they purport to be, or that they relate to this action at all.

It is true that there is no endorsement of filing, either by the justice or the clerk of the circuit court, on any paper in the case which purports to have been used therein before the justice, except that the justice signed officially the following endorsement, without date, on the amended complaint: “ The within is an amended complaint.” The summons, pleadings, copy of docket, notice and affidavit of appeal, and affidavit of the amount claimed, have no sncb endorsement of filing on them or either of them. All of these papers lack these nsnal and appropriate evidences of identity with the case. We are compelled, therefore, to examine the returns of the justice and clerk for the purpose of ascertaining whether these papers, which are returned here as a part of the record, are in fact a part thereof.

In an amended return made by the justice and filed by the clerk of the circuit court, May 13, 1870 (and which, with a single exception, is the first paper in the record filed by him), the justice certifies, in substance, that all of the above mentioned papers, sent to the circuit court with his first return to the appeal, were the original papers in the action, and in that return he again certifies in due form to the correctness of the paper which purports to be a copy of his docket entries.

In the certificate of the clerk of the court, annexed to his return to the writ of error herein, he certifies that “the annexed and foregoing are the original, and all the papers and pleadings which have been filed in my office in the above entitled cause.”

We think that the certificate of the justice, contained in such amended return, shows that he returned the original papers in the action, used before him, to the circuit court; and that the certificate of the clerk shows that the papers attached thereto and returned by him to this court are such original papers. We must hold, therefore, that the record before us is sufficiently identified and anthenticated as the record in this action.

To avoid all questions of this character, however, a justice ought to endorse on each paper filed with him in an action, a statement of the date of such filing, and sign the same officially ; and the clerk of the circuit court should in like manner file each paper returned by the justice on an appeal.

Having thus found that the papers before us are the original papers in the action, the next question is, whether the justice rendered any judgment therein. The form of what purports to be sucb judgment, has already been stated. Although, quite informal, we think it a valid judgment against the plaintiff for $13.81, costs of suit. The justice found that the plaintiff had no cause of action, and the judgment is the legal result of such finding.

The statute required the justice to state in his docket the fees due to each person separately, which he failed to do. This seems to be the principal objection taken to the validity of the judgment. We think that this provision of the statute is directory, and that a failure to conform to it does not vitiate the judgment. Bacon v. Bassett, 19 Wis., 45. The provision was doubtless made for the protection of the party against whom a judgment shall be rendered, and to save him from the liability to pay illegal fees, which can the more readily be smuggled into the judgment, if rendered for a gross sum. But the party can protect himself in such case by requiring an itemized receipt for the costs when he pays the same. E. S., ch. 133, sec. 71.

The justice having ascertained the amount of the costs, and nothing appearing to the contrary, we must presume that he, ascertained and taxed the fees due to each person separately ; and that the plaintiff could have ascertained the items by reference to the record and papers in the office of the justice, at any time while the same remained there.

The remaining question is, Was any valid appeal taken? Since the justice filed his amended return, which shows that he entered in his docket the fact that an appeal was made, and the time when made, and that his fees and the state tax were duly paid to him, there seems to remain but one objection to the validity of the appeal, and that is predicated on the alleged insufficiency of the affidavit of appeal.

The statute (E. S., ch. 120, sec 205) requires that the appellant shall present to the justice, with the notice of appeal, “ an affidavit that the appeal is made in good faith, and not for the purpose of delay.” The affidavit presented to the justice by tbe appellant in tbis case is, “ that be made tbe appeal in said canse in goodfaitb, and not for tbe purpose of delay.” Narrowed down to tbe precise point of- difference it is tbis: tbe statute requires that tbe affidavit shall state that “ the appeal is made,” etc,, while tbis affidavit states that tbe appellant “ made the appeal,” etc. We think that tbe affidavit is a substantial compliance with tbe statute. Although some of tbe decisions of tbis court have held a very rigid rule on tbe subject, and have requbed a very strict, almost literal, compliance with tbe provisions of tbe statute regulating appeals, as essential to the validity of an appeal, yet none of tbe cases have gone as far as we are asked to go in tbis case. We are asked to say that tbis appeal is invalid, and that tbe circuit court did not have jurisdiction of tbe action, because certain words in such affidavit are transposed, which transposition does not affect tbe substance, meaning or sense of tbe affidavit in tbe least.

A due regard for tbe maxim that appeals from inferior tribunals are favored in tbe law, constrains us to believe that we ought not to acquire a more exact and literal compliance with tbe statutes providing for appeals from tbe judgments of justices of tbe peace, than has been required by tbe former decisions of tbis court. We think that tbe rule established by those decisions should not be made more rigid. And in all of those cases where tbe failure to comply with tbe statutory requirement was held fatal to tbe appeal, it will be observed that such failure was in some matter of substance, and not, as in this case, in matter of mere form.

Tbe judgment of tbe circuit court must be affirmed.

By the Oowrt. — Judgment affirmed.