Zitske v. Goldberg

38 Wis. 216

• Court: Wisconsin Supreme Court
• Decided: August 15, 1875
• Status: Published

Opinion

Cole, J.

The counsel for the defendant, on the reargument, discussed fully the questions raised upon his former brief, and which to some extent were considered, and decided adversely to him, in the opinion filed by Mr. Justice LYON. We deem it unnecessary to enter upon a further examination of those questions, because, notwithstanding the criticism of counsel upon the opinion, we are quite.-.well satisfied with the manner in which these questions are there decided. Of course what is there said upon the question of the jurisdiction of a justice of the peace in actions of replevin, was said under the impression that this cause was commenced before a justice. Such, however, was not the fact. The record shows that the action was commenced in the police court of the village of New London ; was tried in that court, and, on judgment being rendered therein against the defendant, was taken by appeal to the circuit court. So that the question upon the record is not whether the value of the property in controversy exceeded the jurisdiction of a justice of the peace, and whether judgment for $208 damages could be rendered, but whether the law creating the police court of the village of New London is valid so far as it relates to the village, and whether the value of the property, or the damages given by the jury, exceeded the jurisdiction of that court. It is but justice to ourselves to say that on the motion for rehearing our attention was first called to the fact that the action was commenced in the police court.

In the first place it is argued by the counsel for the defendant, that the act (ch. 485, P. & L. Laws of 1870) incorporating the village of New London and creating the police court, is a private and local law, and invalid because the title does not mention the organization of that court as one of the objects of the law. This position is clearly untenable under the decisions of this court. Cothren ex rel. v. Lean, 9 Wis., 279: Clark v. City of Janesville, 10 id., 136; Mills v. Gleason, 11 id., 470; Lawson v. Mil. & Northern R'y, 30 id., 597; Voight ex rel. v. Hoeflinger, 31 id., 257. The village charter is a public or general law within the doctrine of these cases, and the court created by it is a municipal court within the meaning of the- constitution. Atkins v. Fraker, 32 Wis., 510; Connors v. Gorey, id., 518. It was certainly within the power of the legislature to organize a municipal court for the village of New London, and to confer upon it a jurisdiction within the village not to exceed that of the circuit court. Atkins v. Fraker, supra. What, then, is the jurisdiction conferred upon the police court by the charter ? By sections 6 and 9, ch. 5 of the charter, it is in substance provided that the police justice shall have and possess all the authority, jurisdiction and powers of a justice of the peace, and shall have civil and criminal jurisdiction coextensive with the limits of the counties of Waupaca and Outagamie. By section 13, ch. 11, it is further enacted that such police justice shall have jurisdiction to the amount of $300, or the value thereof, in all cases where a justice of the peace has jurisdiction.

Now it is very clear, upon the decisions in Atkins v. Fraker and Connors v. Gorey, that it was not competent for the legislature to confer upon the police court jurisdiction which should extend beyond the territorial limits of the village. We fully approve of all that is said in those cases in regard to the proper interpretation of the constitutional provision bearing upon that question, and the power of the legislature under it. The jurisdiction granted cannot extend beyond the municipality. " In all actions the process of the court must be served within the territorial limits, and cannot be served beyond. In all transitory actions the voluntary appearance of the defendant, whether be resides within or without the municipality, will give jurisdiction over his person, the same as in any other court.” This is the language of the chief justice in Atkins v. Fraker, which we have no disposition to qualify or explain away.

In this case the defendant in the action resided and did business in the village of New London; he there had the property in controversy; and the process was served upon him there. He also appeared, answered and went to trial without objection ; and this undoubtedly gave the police court jurisdiction, unless the.position of defendant’s counsel is sound, that there was no court either de facto or de jure, and all proceedings before the police justice were coram non judice. And this presents the question whether the provisions of the charter which confer jurisdiction upon the police court can be held valid so far as the village is concerned, and rejected as to the residue of the jurisdiction attempted to be conferred? We are inclined to hold that this can be done, and that the charter, so far as it creates a municipal court for the village, can be sustained. The grant of jurisdiction to that extent is complete and perfect, and not at all dependent upon the grant of jurisdiction coextensive with Waupaca and Outagamie counties. Nor does there appear to be any reasonable ground for assuming that the legislature would not have organized a municipal court for the village alone without this increased jurisdiction, had the constitutional objection to the court as created been considered. The valid and void portions of the act are not dependent upon each other, nor do they seem to be compensations or considerations for each other, within the language of the cases. We therefore think the case comes fairly within the rule which was recognized and applied in Slauson v. The City of Racine, 18 Wis., 398, and in Atkins v. Fraker. The latter case is strictly in point, as the court there sustained the act so far as the village of Omro was concerned, and rejected as invalid only the provision which attempted to give jurisdiction beyond the village limits.

It is objected to this construction that the cause could not have been removed to or tried by a justice of the peace, had application been made for its removal, or had the police justice been absent, sick or disqualified from trying it. We do not think these suggested difficulties, even if real, ought to overthrow the police court,entirely. It is sufficient to say that this cause was tried by the police justice without objection, and, If the court had jurisdiction of the parties and of the amount in controversy, the proceeding was legal. The police justice had jurisdiction to the amount of $300, while the verdict and judgment were for only $208. The objection, therefore, which was supposed to exist' when the former decision was made, and which was the ground for the reversal of the judgment, namely, that tbe judgment for damages exceeded tbe jurisdiction of tbe court in which tbe action was commenced, has in fact no foundation.

This, together with the opinion already filed, we think sufficiently disposes of all material questions.

The judgment of tbe circuit court must be affirmed.

By the Court. — Judgment affirmed.