Smith v. Bahr

Cassoday, J. It is claimed that the writ of replevin was returnable on the fourth day after it was issued, instead of the third day, as appears from the record returned bj»- the justice, and hence that it was void under sec. 3731, R. S. But it is settled that the record imports verity, and is conclusive. Cassidy v. Millerick, 52 Wis. 379. Even if the justice recalled the writ and changed the date, and then redelivered.it to the officer, as claimed, still we should be inclined to treat it as a reissue or an original issue. The statute imperatively required the justice, on the receipt of the verdict, to immediately enter an order in his docket requiring the officer to deliver the same goods and chattels mentioned in the verdict to the plaintiff, and adjudge that he recover such damages and the costs of the action. Secs. 3662, 3742. This was not satisfied by merely reading the verdict aloud to all present, and entering the same in the docket. Beemis v. Wylie, 19 Wis. 318; McNamara v. Spees, 25 Wis. 539; Perkins v. Jones, 28 Wis. 243; Wearne v. Smith, [247] 32 Wis. 412; Young v. Lego, 38 Wis. 206; Hull v. Mallory, 56 Wis. 355. There is no claim that the justice did anything more. The fact that, the jury did not return the verdict until the morning of a legal holiday, did not relieve the justice from performing the statutory duty of rendering judgment instanter. Perkins v. Jones, supra; Wearne v. Smith, supra; Thompson v. Church, 13 Neb. 287. By the failure to so render judgment instanter the justice lost jurisdiction, and hence the circuit court properly reversed and held for naught the judgment of the justice. But the circuit court went further, and ordered the horses restored to the defendant, and in case such return could not be had, then that the defendant have and recover from the plaintiff their value. Was this authorized on certiorari? There was no motion in the circuit court to suspersede or quash the writ, but it was heard upon the merits. This being so, that court was, according to the settled practice in such cases, powerless to do anything more than to reverse or affirm the judgment of the justice, with costs. McNamara v. Spees, supra; Healy v. Kneeland, 48 Wis. 497; Bandlow v. Thieme, 53 Wis. 57; State ex rel. Dalrymple v. Milwaukee, 58 Wis. 4. The writ did not bring up the evidence for review, but only the record, and that only for the purpose of enabling the circuit court to determine whether the justice had jurisdicr tion to render the judgment complained of. Frederick v. Clark, 5 Wis. 191; Baizer v. Lasch, 28 Wis. 268; Varrell v. Church, 36 Wis. 318; Callon v. Sternberg, 38 Wis. 539; Lewis v. Larson, 45 Wis. 353; Brandies v. Robinson, 45 Wis. 464; Alford v. Jacobson, 46 Wis. 574; Cassidy v. Millerick, 52 Wis. 379. Here the justice had jurisdiction up to the time of the rendition of the verdict, but lost it thereafter by the non-action of the justice. The judgment rendered in the circuit court was the same as it would have been had the jury found in favor of the defendant and the record had shown that the justice had jurisdiction. The [248] plaintiff obtained a verdict, and was entitled to a judgment in bis favor. The defendant was beaten, and judgment should have been rendered against him at the time of the rendition of the verdict; but the circuit court gave him a judgment to which he was not entitled, simply because the justice lost jurisdiction to render judgment for the plaintiff, who was entitled to recover. We think this was error. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to simply reverse the judgment of the justice, with costs.