State ex rel. Posbrig v. Daubner

Babdeen, J". Subd. 11, sec. 3626, Stats. 1898, authorizes a justice of the peace to permit pleadings to be amended, when by such amendment substantial justice will be promoted, but provides that “ no amendment shall be allowed after a witness is sworn on a trial when an adjournment thereby will be made necessary.” In this case the justice permitted an amendment of plaintiff’s complaint to be made on condition that plaintiff pay one day’s attendance of defendant’s witnesses. This amount was paid, and the justice’s docket shows that the defendant then consented to an adjournment. Such consent renders it unnecessary to determine what would have been the effect of the allowance of such amendment upon the question of the jurisdiction of such justice. Clearly, the justice had no right to permit the amendment when an adjournment of the case was thereby rendered necessary. But having granted the amendment on terms, and the defendant having accepted such terms and consented to the adjournment, there was certainly no loss of jurisdiction. Even if it be considered that the justice lost jurisdiction of the case by the allowance of the amendment, still a subsequent consent to the adjournment purged the case of any fault under that ruling, and left it to proceed the same as if it had never been made. Under these circumstances, there was no merit in defendant’s writ, and the judgment of the justice should have been affirmed. But, instead of doing this, the court entered a judgment quashing the writ. The appellant claims this to have been erroneous. "Whatever may have been the confusion among the earlier decisions of this court, it is now well settled that, when the return to the writ shows the proceedings were with full jurisdiction and regularity, it may be quashed. State ex rel. Gray v. Oconomowoc, 104 Wis. 622, and cases cited on page 628. By the Court.— The judgment is affirmed.