Brosde v. SanDerson

• Decision Date: 28 November 1893
• Citation: 57 N.W. 49,86 Wis. 368
• Parties: BROSDE v. SANDERSON ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 368

57 N.W. 49

BROSDE

v.SANDERSON ET AL.

Supreme Court of Wisconsin.

Nov. 28, 1893.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Adam Brosde against M. E. Sanderson and another for false imprisonment. There was judgment for plaintiff, and defendants appeal. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

False imprisonment. The plaintiff was arrested by defendant Heiden, a constable, on a valid criminal warrant issued by the defendant Sanderson, a justice of the peace. He was brought before the justice August 1, 1891, arraigned, and pleaded not guilty, whereupon he asked for a continuance to obtain witnesses, until August 3d. The continuance was granted, and the plaintiff was committed to jail in the mean time, but the justice did not enter in his docket the time or place to which the case was adjourned. The defendant Heiden took the plaintiff to jail, where he was imprisoned until August 3d, when Heiden again brought him before the justice. Another adjournment was had until August 4th, and the plaintiff gave his own recognizance for his appearance, and deposited $40 with the justice to secure his bond. On August 4th the plaintiff appeared pursuant to his recognizance, and the action was dismissed without trial. The plaintiff paid his attorney $10 out of the $40 deposited in court; also the justice's, constable's, and witnesses' fees; and received back out of the $40 but $8.19. The damages were laid at $1,000, besides the $31.81 paid for costs, etc. The jury returned a verdict for the plaintiff for $250, on which judgment was rendered, and defendants appeal.

J. M. Clarke, for appellants.

John J. McAuliffe and J. C. McKenney, for respondent.

WINSLOW, J., (after stating the facts).

It is manifest that the justice completely lost jurisdiction of the case after the first adjournment by not entering on his docket the time and place to which the case was adjourned. Brahmstead v. Ward, 44 Wis. 591. The plaintiff's imprisonment after this adjournment was without warrant of law, there being no action then pending. The circuit judge so charged the jury, and the charge was plainly right.

It is claimed that this defect or loss of jurisdiction was waived by the appearance of the plaintiff, without objection, on the 4th of August. Conceding that such a jurisdictional error might be waived in a criminal case by an appearance without objection, it is very certain that the...