Toledo Computing Scale Co. v. Polanis

SiebeckeR, J. The appellant contends that the circuit ■court erred in reversing the judgment of dismissal of the civil court. It is claimed that the record of the proceeding of the civil court in the first action shows that a trial was had and that the court found that plaintiff had “not proven its case and that the action should therefore be dismissed,” and awarded judgment accordingly. The record of the civil court omits to show that any witnesses were sworn or that any evidence was offered at the trial of the action by either party. This indicates that the parties submitted the case without producing any evidence. The court was proceeding within the [315] law governing tbe jurisdiction of a court of a justice of the peace, and this requires that full minutes of all the evidence given at the trial of a cause shall be reduced to writing and be filed among the papers of the case. Ch. 549, Laws of 1909-; sec. 3638, Stats. This record of the civil court in the first action, therefore, shows that the issues were not tried upon evidence and that judgment of dismissal was awarded upon the ground that plaintiff had not proven á cause of action. Such judgment of dismissal constitutes a nonsuit, and, the propeeding being one in replevin, it devolved on the court to assess damages for the caption and detention of the property and to make an order for its return to the defendant and adjudge that he recover his damages and costs. Sec. 3743, Stats.; Timp v. Dockham, 32 Wis. 146. It has been repeatedly held that a judgment of nonsuit in an action is not a bar to another action upon the same cause. Strehlau v. John Schroeder L. Co. 152 Wis. 589, 142 N. W. 120; Kaley v. Van Ostrand, 134 Wis. 443, 114 N. W. 817. It necessarily follows that the circuit court properly held that the civil court in the instant case erred in dismissing the plaintiffs complaint upon the ground that the judgment in the first case was a bar to the prosecution of this action. It is claimed that the circuit court improperly ordered a trial of the issues in the circuit court. This order is proper under Laws of 1909, ch. 549, sec. 28, suh. 3. Pennsylvania C. & S. Co. v. Schmidt, 155 Wis. 242, 144 N. W. 283; Hanna v. C., M. & St. P. R. Co. 156 Wis. 626, 146 N. W. 878. By the Court. — The order appealed from is affirmed.