Newcomb v. Town of Trempealeau

24 Wis. 459

• Court: Wisconsin Supreme Court
• Decided: June 15, 1869
• Status: Published

Opinion

Dixon, C. J.

The judgment of the circuit court, and that of the justice of the peace, must be reversed, both because the justice called the suit on the return day of the summons, at a place different from that named in the summons and because it was called, and the trial had, at the office of the attorney who appeared and conducted the suit for the plaintiff. The defendant having made no appearance, either on the return day of the summons or on the day to which the cause was adjourned, neither of these objections was waived, and the justice lost jurisdiction. We cannot presume that the office of the plaintiff’s attorney was the office of the justice of the peace, because it was unlawful for the justice to hold his office there. In the absence of proof to the contrary, the presumption of the law is, that public officers do their duty. But if the office of the justice was in the same room with the attorney, then the other objection is equally fatal. The justice was positively prohibited by statute from holding his office at such place, and his proceedings, had in violation of the statute, were void. R. S. ch. 120, § 3.

The plaintiff’s attorney has sent up to this court an affidavit, made since this appeal was taken, by which he attempts to contradict or explain the return made by the justice to the court below. It is needless for us to observe, that we cannot receive or act npon such affidavits. We must be governed by the record brought np in pursuance of the appeal taken to this court.

By the Qourt. —Judgment reversed.