Zeh v. McCormick

Winslow, C. J. The act creating the municipal court of Outagamie county provides that appeals from justices’ courts in civil actions, “where the amount of damages or value of property recovered, exclusive of costs, shall not .exceed fifty dollars,” shall be taken to the municipal court; and in all other cases to either the circuit or the municipal court at the election of the successful party, such election to be exercised after the appeal is taken in ways provided for by the act. Sec. 39, ch. 23, Laws 1907. The first question for decision is whether the present case fell within the first class, i. e. was it a case where the amount of damages recovered exclusive of costs did not exceed $50 ? The argument on one side is that the class is confined to cases where some damages or property is recovered, and on the other side that when no damages are recovered the case is one where the amount of damages does not exceed $50. It is not so important how this question is decided so that it be in fact decided, and, without spending time to discuss the matter, we content ourselves with holding that the case does not come within the class because that class is intended to be confined to cases of recovery of damages or.property, and as there was no such recovery here the case comes within the other class. In passing it may be said that there is no constitutional objection to the vesting of such appellate jurisdiction in the municipal court to the exclusion of the circuit court. Taylor v. De Camp, 68 Wis. 162, 31 N. W. 728. It was a case, therefore, where an appeal was authorized under certain circumstances to the circuit court, and, it appearing that return was duly made to that court, sec. 2836a, Stats., applies. That section provides in substance that when an appeal is attempted to be taken in an action where an appeal is authorized to be taken to any court and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of [241] the appeal or the jurisdiction of the appellate court over person or subject matter, unless he*makes his objection to the jurisdiction before taking or participating in the taking of any other proceedings in the latter court. The words “subject matter” are here evidently used, not in the broad sense as meaning such litigation in the abstract, but in the narrower sense as meaning the subject matter of that particular lawsuit, i. e. in the same sense in which they are used in that long line of decisions, of which Palmer v. Peterson, 46 Wis. 401, 1 N. W. 73, and Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006, are typical, which held that a substantial defect or omission in the appeal papers deprived the appellate court of jurisdiction of the subject matter, which could not be waived by general appearance of the party in court. Read v. Madison, 162 Wis. 94, 155 N. W. 954. It seems plain to us that the section applies to the present' case, and that by appearing in the circuit court and procuring a continuance before making his objection to the jurisdiction the defendant waived all objections to the jurisdiction of the circuit court, that being a court which has general jurisdiction of actions to recover for money had and received and also one of the courts to which the appeal in the present case was authorized to be taken. The last question presented is whether the court properly allowed the affidavit to be filed which should have been filed at the time of taking the appeal in order to obtain a trial de novo. Here, too, we think sec. 2836a governs the case and justifies the court’s ruling. That section provides in substance that, when a motion to dismiss a defective appeal in such a case is made, the court may in its discretion allow defects or omissions in the appeal papers to be supplied with the same effect as if the appeal had been properly taken. In one sense the appeal papers here were not defective; that is, there was an appeal which would allow the court to try the case on the [242] justice’s record. But if the appellant desired a trial de novo the papers were defective because no affidavit of claim exceeding $15 was filed as required by sec. 3768, Stats., in order to obtain a new trial. The court acquired no jurisdiction to try the case anew in the absence of the affidavit, and, if the appellant desired and intended to obtain such relief, the appeal was defective in a very real sense to that extent. The trial court states in his findings of fact that the plaintiff moved for permission to file the affidavit “inadvertently omitted” at the time of taking the appeal in order to permit a trial de novo. ' We regard this as substantially a finding that the omission to file the affidavit at the time of the appeal was an inadvertent omission in the course of an attempt to take an appeal which would entitle the appellant to a new trial. The practice would have been much better had an affidavit been filed showing the facts as to the omission, bút there are no exceptions to the facts found by the trial judge, and so far as the record shows substantial justice seems to have been done. By the Court.- — Judgment affirmed.