Goyke v. State

MaRshall, T. The municipal court of the city of Oshkosh and county of Winnebago was created by ch. 24, Laws of 1895. The act treated criminal cases as not including bastardy proceedings, which was in strict conformity to the decisions of this court. State v. Mushied, 12 Wis. 561; State v. Jager, 19 Wis. 235; Baker v. State, 65 Wis. 50, 26 N. W. 167; Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735; Barry v. Niessen, 114 Wis. 256, 90 N. W. 166; Meyer v. Meyer, 123 Wis. 538, 102 N. W. 52. Those cases are to the effect that a bastardy proceeding is purely statutory and not classible either with criminal or civil cases in the general sense of those terms. It has characteristics of both, and as to such as are similar to those of criminal actions the rules and practice therein are applicable, and as to such as are the same or similar to those of civil actions the rules and practice therein are applicable. Wherein it approaches nearer to the one or to the other class is indicated in the decisions and need not be particularly referred to here. It is sufficient for now that a bastardy proceeding is not a criminal action within the meaning of that term as used in the law creating' the court in question. The act of 1895 purported, by implication, to take away from the circuit court for Winnebago county original jurisdiction of bastardy actions by conferring exclusive jurist diction in that regard upon the new court. The language in respect to the matter is very plain. There is no controversy as to its import. Therefore, we need not quote or discuss the provisions. Sec. 8, art. VII, of the constitution provides that “the circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law.” The act of [560] the legislature in creating the municipal court in question, within the meaning of the quoted language, was -a prohibition bv law of the exercise of original jurisdiction by the circuit, court for Winnebago county in bastardy matters. Notwithstanding language used in Bookhout v. State, 66 Wis. 415, 28 N. W. 119, it seems that while a bastardy proceeding is neither strictly a criminal nor a civil action it is comprehended in the combination of terms “civil and criminal” actions as used in the constitution, since only such actions are known to our system. Secs. 2594-2600, Stats. (1898). That case must be read as holding that jurisdiction to try this class of actions may be and was by the law of 1895 legitimately vested exclusively in the court created thereby. It follows that unless there is some provision in the act of 1895, or some other written law authorizing jurisdiction in such cases as this to be acquired by the circuit court for Winnebago county by change of venue, it did not obtain any jurisdiction of the subject matter here involved by the proceedings resorted to for that purpose. The only written law referred to other than the act of 1895 is sec. 1533a, Stats. (1898). That deals with the subject of changing the venue in bastardy cases from one county to an adjoining county upon proof by affidavit that the accused cannot have a fair and impartial trial in the former. Obviously that does not satisfy this case. There was no such affidavit nor any such change of venue asked for or granted. The act of 1895 provides for a change of venue in criminal' cases only, plainly using the term in the same sense as in the-preceding part of the law conferring jurisdiction in such-eases, i. e. as the name of a class not including bastardy cases. As to such class a change is provided for upon “the affidavit of the accused that he believes he cannot obtain a fair and impartial trial in said municipal court.” Such an affidavit was made in this case, but, obviously, from what has been said it was not legitimately used. [561] "We have proceeded to this point upon the assumption that the right to a change of the place of trial from one court to another is statutory and can be enjoyed only as prescribed by the written law. The rule in that respect, we apprehend, is too familiar to require extended discussion. Wheeler v. State, 24 Wis. 52; Montgomery v. Scott, 32 Wis. 249; State v. Rowan, 35 Wis. 303; Carpenter v. Shepardson, 43 Wis. 406; Garland v. McKittrick, 52 Wis. 261, 9 N. W. 160; Baker v. State, 56 Wis. 568, 14 N. W. 718. It might be thought that since the accused here applied for the change which was granted and appeared and submitted without objection to trial in the circuit court, he should be held to have waived the question now presented. That might be so if the circuit court had jurisdiction to try such cases and the court of first instance consented to part with its jurisdiction, so that the difficulty consisted only in failure to follow a statutory method of invoking the new jurisdiction, as was the case in Carpenter v. Shepardson, supra, and Montgomery v. Scott, supra. When a court does not have jurisdiction of such subjects as the one involved in the action improperly brought before it, mere submission thereto does not confer jurisdiction of the subject matter, and if the court proceeds to trial and judgment the judgment is void. Dykeman v. Budd, 3 Wis. 640; Foster v. Bacon, 9 Wis. 345; Hewitt v. Follett, 51 Wis. 264, 8 N. W. 177; Bullard v. Kuhl, 54 Wis. 544, 11 N. W. 801; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85. In Dykeman v. Budd, supra, and Plano Mfg. Co. v. Rasey, supra, the precise question discussed at this point was passed upon, it being held that where exclusive jurisdiction is in one court as to the trial of a particular class of actions another court cannot by consent of parties or in any manner acquire or legitimately exercise such jurisdiction. The rule that the general jurisdiction of circuit courts is by implication “prohibited by law”' within the meaning of the constitution,- when, jurisdiction has been in terms or by [562] necessary implication conferred upon some other court, is illustrated by Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704, and Burnham v. Norton, 100 Wis. 8, 75 N. W. 304. It was there decided that the legislature by conferring jurisdiction as to the settlement of estates on county courts evinced a policy that matters appertaining thereto should be adjudicated in such courts, so far as an adequate remedy is there afforded, superseding the jurisdiction of circuit courts, and that in case of a circuit court exercising such jurisdiction it should be regarded as having committed jurisdictional error, not waivable by the parties and fatal to the result upon the case coming here for review, regardless of whether the question is raised by objection. It follows from the foregoing that the judgment of the circuit court for Winnebago county must be reversed and the cause be remanded thereto, with directions to remit the record to the municipal court of the city of Oshkosh and county of Winnebago for further proceedings therein according to law. By the Court. — So ordered.