Wright v. Northwestern Union Railway Co. , 37 Wis. 391 ( 1875 )

Lyon, J.

It is claimed on bebalf of tbe railway company, that tbe proceedings in the cause, after the time fixed by law for the commencement of the October term of the county court, were coram non judice, and that the judgment ought to be reversed for that reason.

The statute by which it must be determined whether the court had authority to postpone the trial, after it had commenced, beyond the expiration of the term at which the jury was impaneled and sworn, and for which the cause was noticed, and to complete it during the subsequent term, is ch. 22, Laws of 1871. The first section of the act fixes the terms of the circuit court for the county of Milwaukee. Secs. 2 and 3 are as follows :

“ Section 2. The terms of the county court of Milwaukee county shall be held on the first Monday of January, the first Monday of February, the second Monday of March, the first Monday of May, the first Monday of June, the first Monday of September, the first Mondajr of October, the first Monday of November, and the first Monday of December. No jury shall be summoned for either of said terms except for those appointed to be held on the second Monday of March, and on the first Mondays of June, September and December.”

“ Section 3. Either of said courts may adjourn its terms from time to time to any day occurring before the day appointed for its next ensuing term, and both of said courts may lawfully be held at the same time, in case the business in either shall not be fully transacted at the times appointed by law for the other to be held, or in case either may be adjourned to a day later than the first day of any term of the other. Provided, that no term of either of said courts shall be continued beyond the day previous to the first day of the next ensuing term.”

In plain and unmistakable language, this statute prohibited the adjournment of the September term of the county court to October 5, 1874. The postponement of the trial of this action to that day was, pro tanto, an adjournment of the September term “ beyond the day previous to the first day of the next ensuing term.” It was therefore irregular.

But it is argued on behalf of the plaintiff, that the continued appearance of the railway company after the adjournment cured the irregularity, which, it is said, goes only to jurisdiction of the person. We think it goes deeper than that. No doubt the court had, in a general sense, jurisdiction of the persons of the parties and of the subject matter of the action or proceeding ; but it had no authority to try the case at the October term, 1874, against the objection of either party. To that extent the proceedings were coram non judice. Being so, the mere fact that after the objection to the trial going on had been overruled, the defendant continued to litigate the merits of the action, instead of abandoning the defense, is not a waiver of the irregularity.

The objection to the trial is not unlike a challenge to the array, the overruling of which, when good cause for challenge exists, is error, fatal to a judgment against the party challenging. And it is, doubtless, equally fatal to the j udgment, even though such party should litigate the case on the merits, after such error was committed. What the effect would have been had no objection been taken to a trial of the present case at the October term, 1874, or had the railway company expressly stipulated that it should then be tried, we are not called upon to determine.

The State v. Leahy, 1 Wis., 258, does not aid the jurisdiction exercised in this case. It was there held that, when necessary, a term of the circuit court for one county might lawfully be protracted beyond tbe time appointed for the commencement of a term thereof for another county in the same circuit.

The difference in the cases is, that in The State v. Leahy no statute interposed to prevent the term being protracted, while in this case the statute absolutely prohibited the postponement.

By the Court. — The judgment is reversed, and anew trial awarded.