Fugina v. Brownlie

Oassoday, J. The contention is, in effect, that, as the court granted a nonsuit, the judgment should have been for ■that merely, and not an affirmative judgment in favor of the defendant, as provided in sec. 2888, R. S. Had such non-suit been granted in the justice’s court, it would have been the statutory duty of the justice to have assessed adequate damages for the caption and detention of the hogs seized, and immediately to have entered an order in his docket that the officer deliver the hogs to the defendant, and adjudge that he recover such damages and costs, and issue execution therefor. Sec. 3743, R. S. It may be that this statute is not strictly applicable, since the appeal was tried in the circuit court “ as actions originally brought there.” Sec. 3768, R. S. But this court sustained substantially such a judgment as we have here on a nonsuit being granted in the circuit court in an action of replevin appealed from a justice’s court. Timp v. Dockham, 32 Wis. 146. That case has since been approved. Delaney v. Canning, 52 Wis. 266; Wheeler & Wilson Mfg. Co. v. Teetzlaff, 53 Wis. 225. This being so, the quéstion is not an open one in this court. True, in that case the jury assessed the damages and found the value. But where there is no dispute as to the value, and the damages are merely nominal, as here, we perceive no reason why the court may not so find as well as a jury. High v. Johnson, [631] 28 Wis. 72; Riess v. Delles, 45 Wis. 662; Gammon v. Abrams, 53 Wis. 323; Schweitzer v. Connor, 57 Wis. 177. Circuit Court Rule XXI expressly provides that the court may find such valué and assess such damages and that judgment may be thereupon entered. Certainly there is no error affecting any substantial right of the plaintiffs. Sec. 2829, R. S. Here the judgment is signed by the clerk, yet it is, nevertheless, the judgment of the court. The theory is that the property was wrongfully'taken from the defendant’s possession by virtue of the process, and that the court will place the parties in statu quo. It is not an adjudication of title in the defendant, and is not to be deemed a bar to a proper action for accounting between the parties. In fact the judgment here recites the nonsuit. By the Court.— The judgment of the circuit court is affirmed.