Baker v. State

• Decision Date: 09 January 1883
• Citation: 56 Wis. 568,14 N.W. 718
• Parties: BAKER v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

56 Wis. 568

14 N.W. 718

BAKER

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Error to circuit court, Dodge county.Nath. Pereles & Sons and E. P. Smith, for James Baker, plaintiff in error.

H. W. Chynoweth, Asst. Atty. Gen., for the State, defendant in error.

TAYLOR, J.

The plaintiff in error was arrested on a warrant issued by a justice of the peace of Waukesha county, upon a complaint for bastardy under chapter 64, Rev. St. 1878, made May 16, 1878. There was a warrant issued on the same day the complaint was made, and placed in the hands of the sheriff of said county. No arrest was made on this warrant, and the same was not returned to the justice. The justice certifies that the term of office of the sheriff, to whom said warrant was issued, expired, and no arrest had been made by him; that the said warrant had not been returned to him or delivered by such sheriff to his successor in office; that upon these facts being made to appear to the justice, and upon application therefor, he issued another warrant on said complaint for the arrest of said Baker, May 16, 1879, upon which last warrant he was arrested and brought before the justice, December 22, 1879, when the complaint was read to him and he pleaded not guilty thereto. Upon his application the hearing was adjourned to December 29, 1879, upon which day the parties appeared before the justice and an examination was had. The justice decided that there was probable cause to believe the defendant guilty of the offense charged in the complaint, and ordered that the defendant enter into a recognizance, with sufficient sureties, in the sum of $500, to appear at the next regular term of the circuit court for Waukesha county to answer for the offense charged in the complaint, etc. The defendant gave the recognizance as required.

At the March term, 1880, of said circuit court the defendant appeared and filed an affidavit “that he had good reason to believe and does believe that he cannot have a fair trial of such action on account of the prejudice of the judge of said court, the Hon. David W. Small,” and asked that the place of trial be changed to some county where the cause complained of did not exist. Thereupon, by order of the court, the place of said trial was changed to Dodge county, and the records and files remitted to the clerk of the circuit court of that county. At the October term, 1880, of the Dodge county circuit court, the defendant appeared and a jury was drawn to try the action, and after they were sworn the court discharged the jury and ordered that the records and files be remitted to the circuit court of Waukesha county, holding that the return of the justice of the peace to that court was imperfect, and insufficient to give the circuit court of Waukesha county jurisdiction. The records were returned to the latter court, and on November 24, 1880, the justice made an amended return to said court, and thereafter and at the December term of said circuit court of Waukesha county the defendant made another affidavit of prejudice of the circuit judge, and the place of trial was again removed to Dodge county. At the February term, 1881, of the Dodge county circuit court, the defendant appeared, and moved said court to dismiss the action for want of jurisdiction. The motion was overruled and the defendant excepted. The reasons assigned by the defendant upon his motion to dismiss the action were: “ First, that the place of trial in said action had been improperly changed; second, that the circuit court of Waukesha had no authority to change the venue of said action to the county of Dodge or the circuit court of the county of Dodge; third, that there is in the statutes no authority to change the venue in actions or proceedings thereunder for bastardy.” There are other matters alleged as errors in the impaneling of the jury and arising upon the trial, which it will be unnecessary to consider upon this appeal.

The plaintiff in error, for the first time upon this appeal, objects to the regularity of the issuing of the second warrant upon the complaint, and upon which he was arrested and brought before the court. Had there been any irregularity in the issuing of the second warrant we think it was waived by the defendant pleading to the complaint, going to trial upon the merits, and entering into a reconizance to appear in the circuit court. We are also of the opinion that, upon the facts stated by the justice in his return, the second warrant was properly issued, and that the defendant was lawfully arrested and brought before the justice thereon. We see no objection to the practice adopted in this case. The first warrant having failed of its purpose by reason of the termination of the office of the sheriff in whose hands the same was placed, and such officer having neglected to deliver the warrant to his successor in office, there is no reason why another should not issue upon the original complaint. There does not appear to be any reason for the defendant's objection. He is not injured by reason of the want of a return to the first warrant.

The second objection to the proceedings, viz., that the cause was improperly removed from the county of Waukesha to the county of Dodge, and that the circuit court of Dodge county had no jurisdiction to try the action against the objection of the plaintiff in error, was, we think, well taken.

Although the motion to dismiss the action was not, perhaps, the remedy to which the defendant was entitled, still his grounds of objection to proceeding to trial in the Dodge county circuit court were clearly stated, and he did not (if he could, by going to trial without objection) waive his objection to the jurisdiction of the court to try the case by asking relief which he may not have been entitled to. If the circuit court of Waukesha county had no authority to change the place of trial upon an affidavit of prejudice of the judge, in the form set out in the bill of exceptions, then the circuit court of Dodge county did not obtain jurisdiction of the case by the order of the circuit court of Waukesha county removing the place of trial to said county. The proceedings under chapter 64, Rev. St., are purely statutory, and the jurisdiction which the justice court and the circuit courts may exercise in such proceedings must be derived from that chapter or some other statute of the state. The jurisdiction is not a common-law jurisdiction in either of said courts. W. U. R. Co. v. Dickson, 30 Wis. 389;Town of Eaton v. Williams, 51 Wis. 100; [S. C. 7 N. W. REP. 838.]

This court has repeatedly held that these proceedings are sui generis; that the proceedings are neither a civil nor criminal action, within the definition given to such actions by the statute. State v. Mushied, 12 Wis. 561;State v. Jager, 19 Wis. 235.

The statute requires the justice to examine in relation to the guilt of the party charged in the complaint, and if he finds there is probable cause to believe accused guilty of the offense, to require him to enter into a recognizance to appear at the next term of ...