Coffee v. City of Chippewa Falls , 36 Wis. 121 ( 1874 )

Lyon, J.

On this appeal we are only to consider whether the justice had jurisdiction of the action. Owens v. The State, 27 Wis., 456, and cases cited; State v. Huck, 29 id., 202. If he had jurisdiction thereof, although he may have committed errors therein, but errors not affecting his jurisdiction, the circuit court properly affirmed his judgment.

1. It is claimed on behalf of the defendant that the return of the justice to the writ, of certiorari is so defective that the judgment of-affirmance should be reversed, and the cause remanded to the circuit court with directions to that court to compel a further return, by the justice. This course was pursued in Cecil v. Barber, 3 Wis., 297. In that case the justice made no return whatever to the writ of certiorari, except to certify that before it was served upon him the.defendant in error discharged the judgment and paid the costs. The circuit court determined the cause on such return, and reversed the judgment of the justice. On appeal, this court reversed the judgment of the circuit court, and remanded the cause with directions to^that court as above indicated. Here we have no such case. This record shows affirmatively that the justice made full return to the writ of certiorari. This case is not, therefore, ruled by that of Cecil v. Barber.

2. The complaint is not found in the record sent here from the circuit court; but it appears by a supplemental return of the clerk (and probably sufficiently appeared without it), that the complaint was duly returned by the justice to that court.

It is urged that in , the absence of the complaint this court cannot presume that it states a cause of action cognizable by a justice of the peace. But the rule of law is well settled, that all reasonable intendments must be made in support of the judgment. The circuit court having the complaint before it, affirmed the judgment of the justiceand in support of such judgment of affirmance we must presume that such complaint states a cause of action cognizable before a justice of the peace, unless the justice was deprived of jurisdiction by the provision of the charter of the' defendant city, presently to be noticed. This presumption is greatly strengthened by the consideration that the only objection to his jurisdiction, which was raised before the justice, was predicated on such charter provision.

It is said in the brief of counsel for the defendant, that the title to real estate was in issue. In the absence of an answer it is difficult to perceive how this can be true. Did the complaint aver title to real estate in the plaintiff, and had the defendant answered in writing putting such title in issue, and given the bond prescribed by the statute, the justice would thereby have lost jurisdiction to try and determine the case. But no such proceedings were taken, and the mere fact (if it be a fact) that title to land is asserted in the complaint, did not deprive the justice of jurisdiction. State v. Huck, 29 Wis., 202; Brown v. Streng, 32 id., 59; R. S., ch. 120, secs. 51 to 53 (Tay. Stats., 1364).

3. The next question is, Had the justice jurisdiction of an action against the city of Chippewa Falls ? The charter of that city provides that the police justice thereof “ shall have exclusive jurisdiction in all cases cognizable before a justice of the peace in which the city is a party,’’saving however the jurisdiction of the circuit and supreme courts. P. & L. Laws of 1873, ch. 108, sub-ch. IV, sec. 17 (p. 228). This provision was enacted solely for the benefit of the city, and that the city may waive the benefit of it we cannot doubt. It was substantially admitted on the argument, by the learned counsel for the defendant, that it is competent for the city to bring actions before any justice of the peace; and yet the provision is general, applying as well to actions brought by the city as to those brought against it. If it may waive the restriction when it is plaintiff, why may it not do so when it is defendant ? No good reason is perceived why the city may not, in all cases, waive the benefit of the provision of its charter under consideration. We are clearly of the opinion that this provision is a restriction upon the jurisdiction of justices of the peace in respect to party to the action, and not in respect to the subject matter thereof.

By interposing a demurrer to the complaint, the defendant made full appearance in the action, and thereby waived its right to be sued exclusively before its police justice. Such an appearance cures all defects in the process or proceedings which relate only to the jurisdiction of the court of the person of the defendant. Blackwood v. Jones, 27 Wis., 498, and cases cited.

4. The only remaining objection to be noticed is, that the justice lost jurisdiction of the action by failing to enter in his docket a brief statement of the nature of the complaint, as required by statute. R. S., ch. 120, sec. 11, par. 4 (Tay. Stats., 1854). This provision of the statute imposes upon the justice a merely ministerial duty, and his failure to perform it does not affect his jurisdiction. The distinction between such requirements and those contained in the same section of the statute which are of the essence of the proceeding, and hence jurisdictional, is well stated by Chief Justice Dixon, in Bacon v. Bassett, 19 Wis., 45. It is quite unnecessary to add anything to what is there said on this subject.

The judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.