Bacon v. Bassett

19 Wis. 45

• Court: Wisconsin Supreme Court
• Decided: January 15, 1865
• Status: Published

Opinion

By the Court,

DixoN C. J.

The practice in courts of record of permitting sheriffs, either before or after judgment, to amend their returns of the service of process, is familiar. Undersea 4, ch. 120, R. S., justices of the peace possess in general the same powers to allow amendments in proceedings before them as are possessed by courts of record. Hence the justice in this case was correct in permitting the sheriff to amend his return according to the facts, and so as to show that the summons was properly served according to the requirements of the statute.

Neither was the omission of the justice to enter in his docket “ a statement of the return of the officer,” as required by subd. 2, sec. 11, eh.- 120, R. S., an error for which the judgment can be reversed. The statute in this respect is no doubt directory. It imposes a merely ministerial duty, which, if not performed, does not affect the jurisdiction of the justice, or the regularity of the judgment. Such is the doctrine, under a similar statute, of Hall v. Tuttle, 6 Hill, 38, where the authorities are fully examined, and we cordially approve it in a case like this.

Brown v. Kellogg, 17 Wis., 475, is quite distinguishable. There, under the previous decision in Roberts v. Warren, the docket entry, as well as the public announcement of the adjournment, was held to be of the essence of the proceeding. The parties had the right to look at the entry to ascertain the time and place of adjournment. But here it is not so. No damage could ensue to either party for want of the entry. The same information could be obtained by an examination of the return itself, indorsed upon the summons, which by law is to be preserved among the files.

The other objections urged against the validity of the judgment seem equally unfounded.

The statute does not require the justice to enter in his docket that he held his court at the time and place appointed in the summons. The presumption is that he did so until the contrary is shown. It does not require him to enter at what hour the suit was called or the j udgment rendered. The presumption is in this respect the same. It is that the suit was called within one hour after the time specified in the summons, and the judgment rendered after the expiration of such hour. Neither does the statute require an entry in the docket of the town or county in which the court was held. The requirement of subdivision 10 as to the entry of costs and fees separately. is also directory. The j udgment will not be reversed upon this writ unless it affirmatively appears by the return that the justice exceeded his jurisdiction in the taxation of costs.

All these objections seem hypercritical and unfounded in the extreme, and must be disregarded. Judgment affirmed.

Note. On a motion for a rehearing, J. C. MopUns, of counsel for plaintiff in error, argued that the justice had uo right to allow an amendment of the sheriff’s return fifteen months after the rendition of the judgment, and three days after the service of the writ upon him in this action. 1. A justice has no jurisdiction to render a judgment without a return of the process then, before him, which shows that the same was duly served. Selby v. Plaits, 3 Chand., 183, 187. Even the circuit court cannot allow.on amendment nunc pro faino so as to make a void judgment valid. Fairchild v. Pean, lo Wis., 206. If, upon examining the return at the time of trial, it were found defective, the court might (under section 4, ch. 120^ R. S.) allow an amended return. But here the justice, at the trial, held the return sufficient, and proceeded with the cause. It would seem very strange that, after judgment, he should be allowed to revise his errors committed upon the trial, and after the service upon him of a writ of certiorari, allow the plaintiffs to come before him, without notice to the defendant, and make a motion, in a cause decided more than a year previously, for leave to amend by introducing further evidence to show that in fact he had jurisdiction to try the cause, although the proof before him at the trial did not show it. The power conferred upon a justice of the peace by the general language of sec. 4, ch. 120, does not extend to the amendment or alteration of a judgment after it has been perfected. People ex. rel. Phelps®. Delaware C. P, 18 Wend., 558. The power of amendment belongs to them before judgment but not afterwards. See case last quoted, and Brace ®. Benson, 10 Wend., 213; Hear ®. Van, Alstyne, 14 Wend., 230. But even a court of record could not allow an amended return to he made and filed without notice. Mill v. Moover, 9 Wis., 15; Pape v. Baton, 9 Wis., 328; Pollard v. Wegene,r, 13 id., 569. Suppose the justice had issued an execution upon the judgment, and after a levy made, had been sued in trespass; could he have allowed an amendment so as to make the judgment good? Or could he have proved by the sheriff that the summons was served in the manner prescribed by law? Or in a case of adjournment, like that of Brown v. Kellogg, 17 Wis., 475, couldthejustice, after service upon him of the certiwari, amend his docket “in accordance with the real fact,” so as to show the time and place to which the cause was adjourned ? The motion for a rehearing was denied. Rep.