Fuller v. Tubbs

Dodge, J. The question presented is merely whether, under our statutes, the justice of the peace had jurisdiction to render judgment dismissing defendant’s affirmative cause of action and defense for want of any evidence in support thereof. Neither the regularity of his assuming to decide upon the evidence after the jury had been impaneled nor ■the correctness of his decision is before us. On certiorari to such a magistrate the reviewing court does not sit to correct errors, but to measure jurisdiction. Krueger v. Cone, 106 Wis. 522, 81 N. W. 984. The defendant contends that, when a jury is impaneled in justice’s court, the jurisdiction of the justice is limited to the performance of the duty imposed by sec. 3653, Stats. 1898, namely, to enter the verdict in his docket, and enter judgment according thereto. This contention seems to ignore certain other sections granting power to justices of the peace. Thus, by sec. 3571, Id., it is provided: “Every justice of the peace in any town may hold a court for the trial of all actions of which justices of the peace have j urisdiction by law, and hear, try, and determine the same according to law; and for that purpose, where no special provision is otherwise made, such court shall be vested with all the necessary powers which are possessed by courts of record;” and by sec. 3659: “Judgment of nonsuit shall be rendered against a plaintiff prosecuting an action before a justice of the peace in the following cases: . . . (4) If he become nonsuited on the trial.” We are unable to avoid the conclusion that by these sections power and jurisdiction [214] is conferred upon the justice of tbe peace to render judgment dismissing a counterclaim, as in this case, notwithstanding the fact that a jury may have been impaneled. The further step to rendition of judgment in favor of the plaintiff, his cause of action having been categorically confessed by the answer, is without difficulty. The record discloses no loss of jurisdiction by the justice, and no act beyond the power conferred by the statute, and judgment of reversal upon the writ of certiorari was erroneous. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment affirming the judgment of the justice of the peace.