Miles v. Chamberlain

17 Wis. 446

• Court: Wisconsin Supreme Court
• Decided: June 15, 1863
• Status: Published

Opinion

By the Court,

Paine, J.

This suit was commenced before a justice of the peace, to obtain possession of a hog. The defendant pleaded that the hog had been found running at large in the highway, contrary to the by-laws of the town, and had been taken up and sold under said by-laws, and that he became the purchaser. Under the provision in the code that all allegations in the answer setting up new matter, not amounting to a counter-claim, shall be deemed controverted or avoided as the case may require, this was supposed to put in issue the question whether the place where the animal was taken up was a highway or not, and consequently to involve a question of title. The defendant gave the necessary bond, and the case was sent for trial to the circuit court.

On the trial, the court ruled that the town had no authority to provide for the impounding and sale of animals found running at large ; and rejected the evidence offered by the defendant to show title in himself. This we think was correct. Section 3 of chapter 15, R S.,- while it confers on towns the authority to make by-laws to restrain animals from running at large, very clearly indicates the means by which those bylaws are to be .enforced — that is by imposing penalties upon the owners. Providing this means, by implication, excludes all others. And it is therefore not necessary to determine whether the power could be conferred on the town to pass a by-law like the one in question, by which the title of the owners of animals may be divested without any judicial proceedings against them whatever. It is plain that the statute has not attempted to confer any such power.

But the result of this is, that the answer set up no defense. As the sale under which the defendant claimed was-wholly void, it was entirely immaterial whether the hog was taken up in the highway or not. The title to land was therefore not in issue, and the justice of the peace should have tried the suit. He had no authority to send it to the circuit court, and the latter had no jurisdiction. Instead of trying the case andgiv-ing judgment for tbe plaintiff, it should have dismissed the suit on the motion of the defendant. Verbeck vs. Verbeck, 6 Wis., 159.

The judgment is reversed, with costs, and the cause remanded with directions to the circuit court to dismiss the suit.