Hellriegel v. Truman

TayloR, J. The judgment of the circuit court does not state the grounds of reversal, but adjudges that “ the judgment of the justice is manifestly erroneous and void.” The counsel for the respondent insists that the justice’s judgment was void, for two reasons —first, because the law required ■ the justice to remove the case to another justice upon the presentation of the affidavits of the defendants as to his prejudice in the case and the motion for such removal on. [255] behalf of the defendants; and, second, because the justice lost jurisdiction of the case by adjourning the ease for one week on the motion of the plaintiff. We are clearly of the opinion that the justice lost jurisdiction to try the case after the affidavits of prejudice were presented and the motion for removal was made. The rule established in such cases for the circuit courts must be applied to the justice’s court. The language of the two statutes is alike. Although the affidavit of prejudice was not made by all of the defendants served, they all appeared and joined in the motion for the removal of the case on the affidavits made by a part of them. 'The case is clearly within the rule laid down by this court in the cases of Wolcott v. Wolcott, 32 Wis., 63; State ex rel. Cuppel v. Milwaukee Chamber of Commerce, 47 Wis., 670, 679; and Eldred v. Becker, ante, p. 48. The justice should have removed the case on the application of the defendants. The defendants having presented a sufficient affidavit of prejudice and tendered the proper costs, the law made it the duty of the justice to remove the case to the next nearest justice in the county; and the defendants refusing to appear further in the action before said justice, he lost all jurisdiction to proceed further in the case. Jenkins v. Morning, 38 Wis., 197. The return of the justice to the writ of certiorari showing the facts above stated, the circuit court propei’ly reversed the judgment of the justice. This omission, on the part of the justice, makes it unnecessary to determine whether the justice lost jurisdiction of the action by his subsequent adjournment of the case on the motion of the plaintiff. By the Court.— The judgment of the circuit court is affirmed.