Van Patten v. Wilcox , 32 Wis. 340 ( 1873 )

Eton, J.

The only question presented by this appeal for our determination is, whether the plaintiff is entitled to recover costs. If a justice of the peace had jurisdiction of the action, this question must be answered in the negative. Otherwise, if a justice had not jurisdiction thereof. Tay. Stats., 1531, § 54, subdivision 3.

1st. If the action is founded upon an account, within the meaning of the statute (Tay. Stats., 1353, § 9), then a justice of the peace had not jurisdiction thereof, because the plaintiff proved a claim or account against the defendant exceeding $500, as appears by the report of the referee. Is the action founded on an account? The pleadings fail to show how the fact is, but the referee in his report denominates the plaintiff’s claim an account, and, if the plaintiff is not entitled to costs unless it be an account, the circuit court has necessarily held it to be such; otherwise no judgment for costs would have been rendered against the defendant. We must make all reasonable presumptions in support of the judgment of the court below ; and, not having the evidence before us, and nothing appearing in the record to the contrary, we are bound to presume that the action was founded on an account, if that be necessary to sustain the judgment.

2nd. But, conceding that the action is not founded on an account, the result is the same. The amount recovered by the plaintiff is not a balance due him for his labor after deducting payments made by the defendant on account of such labor. But he has recovered $792.18 for such labor. The defendant has recovered against the plaintiff, on his counterclaim for separate and independent causes of action, $760.75. It does not appear that the claim has any connection with the former. It might be inferred, perhaps, from the use of the word payment in the report of the referee, that some portion of the counterclaim consisted of payments made on account of the plaintiff’s work, but if so, the amount of such payments does not appear. So we have here two recoveries in a proceeding which is equivalent to cross actions, either of which exceeds the jurisdiction of a justice of the peace. Had the plaintiff recovered an unpaid balance for his labor of $31.43, a justice would perhaps have had jurisdiction. But we have no such case here.

Were A. to sue B. before a justice of the peace for money lent to the amount of $900, and prove his whole claim on the trial, and were B. to counterclaim that A. owed him $800 for the rent of a farm, and prove his counterclaim, there being no connection between the two causes of action, and neither having accrued as a payment or part payment of the other, it would not be claimed that the justice would have jurisdiction to adjudicate the claims of the respective parties, and to render judgment against B. for the difference between them. Yet this is, in principle, just such a case.

For these reasons the judgment of the circuit court must be affirmed.

By the Court— Judgment affirmed.