Dring v. Mainwaring

Eschweiler, J. After proceedings-had been had to discontinue an old highway and lay out a proposed new one over lands now occupied by the plaintiff, a mandamus proceeding was instituted by the defendant Walker to compel the town board to proceed to open such new highway. Thereafter plaintiff commenced this action in the county court of Iowa county to enjoin and restrain the defendant supervisors from removing a fence and from opening such highway upon the lands so occupied by him. The defendant supervisors inter [357] posed no answer, and then the defendant David Walicer applied for and obtained permission to be made a party and contested the issues with the plaintiff. The case was tried before the judge of the circuit court for Iowa county, who was called in by the county judge. Judgment was entered granting plaintiff the relief he prayed for, namely, declaring that the proceedings as to the highway were null and void from loss of jurisdiction thereover by the town board, but adjudging that no costs should be given to either party as against the other. The record in this case discloses that the equitable action so sought to be maintained does not come within any of the five classes of cases over which the county court of Iowa county has jurisdiction under the statute creating it, as was determined in the recent case of State ex rel. Owen v. Reisen, 164 Wis. 123, 159 N. W. 747. This being so, the county court had no jurisdiction to enter any judgment or to take any proceedings other than those authorized under sec. 2836a, Stats., requiring such court to remove the cause to some court having jurisdiction. An examination of the record satisfies us that there was no good reason apparent why the general rule giving to the prevailing party his costs should have been departed from so far as to deny the plaintiff his right to costs against the defendant Walicer. By the Court. — Appeal dismissed for want of jurisdiction in the county court, and the record remanded to that court with directions to remove the cause to some court having jurisdiction. No costs ■ allowed in this court to either party other than that the clerk’s fees be paid by the plaintiff.