Baizer v. Lasch

LYON, J. Baizer, the plaintiff in error, brought an action against Lasch, the defendant in error, before a justice of the peace, on an account. The defendant in that action appeared specially and moved to dismiss the attachment (the action having been commenced by attachment), for alleged defects in the return of the officer who served the writ The justice overruled the motion. This was on the 2d day of June, 1870. Lasch then demanded a bill of particulars of the plaintiff’s account; and the justice ordered him to furnish the same by June 4th. On the affidavit of Baizer, and by consent of Lasch, the cause was adjourned to August 2d; on which day both parties again appeared, and by consent the cause was held open until three o’clock P. M.; and again the justice, on his own motion, held it open until the next day at 11 A. M. The return of the justice as to the further proceedings is as follows : “ On the 3d day of August, 1870, at 12 o’clock M., [270] on motion of the plaintiff, cause continued till the 10th day of August, 1870, at 9 o’clock A. M., at my office.” On the 10th day of August the defendant did not appear. The plaintiff in the action appeared, put in his proofs, and obtained judgment for $23.70 damages, and costs. The damages are seventy cents in excess of the amount claimed by the plaintiff in his complaint. Lasch, the defendant in the action before the justice, sued out a common law certiorari, which was allowed by the circuit judge in vacation, and removed the case to the circuit court. The circuit court denied a motion to dismiss the writ, and reversed the judgment of the justice. Baizer, the plaintiff before the justice, and the defendant in error in the circuit court, has sued out a writ of error on the judgment of the circuit court to reverse the same. I. The writ of certiorari was properly allowed by the circuit judge in vacation. The power is conferred by sec. 4, chap. 116 of the revised statutes. II. A common law certiorari only brings up the record, and can only reach defects or errors in the proceedings of the tribunal to which it is issued, which appear upon the face of the record, and which go to the jurisdiction of that tribunal. Mere errors and irregularities, which do not affect the jurisdiction, are not reached by this proceeding. As was said by Justice PAINE, in Tallmadge v. Potter, 12 Wis., 317, “ The object of that writ is to confine inferior tribunals within their jurisdiction — to prevent them from exercising powers not delegated to them — and not to correct every error they may commit in executing the powers that are delegated.” The evidence is no part of the record; and it is not the office of the writ to bring up the evidence for review. Birdsall v. Phillips, 17 Wend., 464. III. An application of these principles to this case would have excluded from the consideration of the circuit court several of the objections taken in this court to the justice’s judgment, and which were doubtless urged on the argument in that court. [271] These are, 1st. That tbe justice erred in allowing testimony to be given when no bill of particulars was filed at tbe time tbe court ordered that it should be done. Another perfect answer to this point is, that no objection was interposed to the admission of the testimony. 2d. That the judgment is in excess of the claim of the plaintiff. (Johnson v. Moss, 20 Wend., 145.) None of the authorities cited by counsel for the defendant in error to show that the judgment is void for that reason, sustains the proposition. It may be error, but not an error that goes to the jurisdiction of the court. 3d. That the evidence shows the judgment rendered by the justice is for the debt of some person other than the defendant Lasch. We have already seen that the evidence is not before the court. None of these alleged errors and defects in the proceedings before the justice affect the jurisdiction of the justice. IV. But two jurisdictional questions are presented by the record. The first one relates to the alleged defects in the return of the officer to the writ of attachment. We have not. looked into that return, because the defendant Lasch appeared generally in the action, after his motion to dismiss the attachment had been denied; and this courthas held repeatedly that such an appearance gives the court jurisdiction of the person of the defendant, without regard to defects in the process or in the service and return thereof. The demand for a bill of particulars in the action before the justice was a proceeding to the merits, and a full appearance by Lasch, the defendant. The other of these questions relates to the adjournment from August 3d to August 10th. This adjournment was obtained on motion of the plaintiff Baizer. The justice had no power to grant it without the consent of Lasch, unless he was satisfied, by the oath of some person, that certain specified causes existed therefor. E. S., ch. 120, sees. 61, 62. If, therefore, he granted the adjournment without such oath or consent, he lost jurisdiction of the case, and the judgment rendered by him August [272] lOtb is absolutely null and void, and was properly reversed by tbe circuit court. But tbe record fails to sbow tbat tbe justice granted tbe adjournment without sucb consent or tbe oatb required by law. True, tbe justice does not return tbat Lasch appeared on tbe 3d and consented to tbe adjournment, neither does tbe return sbow tbat any oatb was made as required by law; but it certainly fails to sbow tbe opposite state of facts. Tbe record is silent on tbe subject. Sucb being tbe case, every reasonable intendment must be made to sustain tbe jurisdiction of tbe justice. Merritt v. Baldwin, 6 Wis., 439; Conkey v. Post, 7 Wis., 131. We must therefore assume tbat tbe consent of tbe opposite party was obtained, or tbe oatb required by statute made, before tbe adjournment was granted, and thus save tbe jurisdiction of tbe justice by what we consider to be a reasonable intendment. This disposes of all tbe errors alleged to have been committed by tbe justice in tbe proceedings before him, and in tbe judgment rendered by him. It follows tbat tbe judgment of tbe circuit court must be reversed, and tbat of tbe justice affirmed. By the Gov/ri. — So ordered.