State ex rel. Kaltenbach v. Shiel

90 N.W. 112, 114 Wis. 254, 1902 Wisc. LEXIS 129

• Court: Wisconsin Supreme Court
• Decided: April 22, 1902
• Status: Published

Opinion

Cassoday, 0. J.

Upon tbe verified petition of tbe relator, an alternative writ of mandamus was issued by tbe trial court, requiring tbe defendant, as justice of tbe peace, to amend tbe record of bis court in an action of replevin wherein Mrs. Jobn Kaltenbach was plaintiff, and tbe petitioner, Peter Kaltenbach, was defendant, by stating tbe time of filing tbe affidavit and tbe return and tbe filing of tbe warrant according to tbe facts stated in tbe petition, or show cause to tbe contrary on a day named. Tbe defendant made return to tbe alternative writ, to tbe effect that at tbe time of issuing tbe writ of replevin by him, March 7, 1901, there was on file in bis office tbe necessary and proper affidavit, properly executed and sworn to, and filed in bis office as required by law, .authorizing and empowering him to issue the writ, before he issued the same; that such writ of replevin was issued in due ■course thereafter, and delivered to the proper officer to serve the same, and who returned the same to the defendant, as .such justice, March 9, 1901, and which writ was on that day indorsed “Filed” as of March 7, 1901, — but specifically denies all the statements contained in such alternative writ, •except as therein admitted.

No question is made but that the affidavit for the writ of replevin was substantially in the form required by the statute. Sec. 3733, Stats. 1898. It purports to have been subscribed and sworn to before the defendant, as justice, March 7, 1901. The record of the defendant shows the same thing. The warrant purports to have been issued by the defendant .as justice of the peace on the same day, and made returnable March 11, 1901, at 9 o’clock a. m. It is undisputed, upon the evidence given upon the trial, however, that, while the affidavit for the writ of replevin was sworn to before the defendant, and was present when he issued the warrant, yet that it was taken away by the officer who served the warrant, and was absent from the defendant’s office until the warrant was returned, on the 9th or 10th of March, 1901, and was then, with the warrant, indorsed as having been filed March 7, 1901. Did the defendant, as justice of the peace, lose juris■diction by such failure to retain the affidavit in his office and indorse it as filed when he first received it ? We think not. 'The affidavit must be regarded as having been filed with the defendant when it was first made and the warrant issued 4,hereon, as mentioned. This has repeatedly been held as to the filing of chattel mortgages and claims for liens in the office of the clerk. Smith v. Waggoner, 50 Wis. 155, 6 N. W. 568; Marlet v. Hinman, 77 Wis. 140, 45 N. W. 953; Goodman v. Baerlocher, 88 Wis. 287, 60 N. W. 415; Bailey v. Costello, 94 Wis. 91, 68 N. W. 663. The same is true in regard to notice of appeal to this court, served upon or delivered to tbe clerk of tbe trial court for tbe purpose of complying with tbe statute. In re Madden’s Will, 104 Wis. 63, 80 N. W. 100; Willey v. Clark, 105 Wis. 22, 80 N. W. 102; Flanders v. Keefe, 108 Wis. 448, 84 N. W. 878. See Koch v. Hustis, 110 Wis. 62, 85 N. W. 643. Tbe petition shows that the officer serving tbe warrant took possession of tbe goods described therein, as directed in tbe warrant, March 7, 1901. Tbe statute made tbe affidavit for tbe writ of replevin tbe complaint in tbe action. Sec. 8739, Stats. 1898. The docket entries of tbe defendant as justice show a brief statement of tbe nature of and reference to tbe affidavit as a pleading so filed, as required by the statute. Subd. 4, sec. 3574, Stats. 1898. Tbe record of tbe defendant as justice of tbe peace substantially complies with tbe statutes, as shown by tbe undisputed evidence as well as tbe return to tbe alternative writ and tbe findings of tbe court.

By the Court. — Tbe judgment of the municipal court of Racine county, dismissing tbe alternative writ of mandamus, with costs against tbe petitioner, is affirmed.