Bullard v. Kuhl

• Decision Date: 14 March 1882
• Citation: 11 N.W. 801,54 Wis. 544
• Parties: BULLARD v. KUHL.
• Court: Wisconsin Supreme Court

54 Wis. 544

11 N.W. 801

BULLARD

v.KUHL.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, Clark county.J. R. Sturtevant and R. J. MacBride, for appellant.

James O'Niel, for respondent.

ORTON, J.

This action was originally brought before a justice of the peace on a promissory note of $12, and the defendant answered that the note was obtained by fraudulent representations and undue influence. The cause was regularly tried by the justice and judgment rendered for the defendant, and the plaintiff appealed to the circuit court and a return made. While the cause was pending in the circuit court the parties, by their respective counsel, stipulated “that there may be a new trial in this action, the same as though this action had been originally brought in this court.” Thereupon there was a trial de novo by the court,--a jury having been waived,--and the court made findings of fact and rendered judgment in favor of the plaintiff for $12.83, damages, and $52.28, costs, which costs embraced the costs in the justice court of $15.44. The record shows that the circuit court obtained jurisdiction of this action only by the appeal and the return of the justice, and the appeal is still pending, and has not been disposed of, either by a hearing according to the statute or by dismissal, and the judgment in the action for the defendant in the justice's court still remains unreversed: and that a new trial in all respects, upon new evidence and upon the pleadings filed before the justice, and the issue there made, was had in the appellate court, and judgment was rendered in that court upon the merits, in which is included the costs made before the justice. The stipulation is for a new trial in the action pending on appeal.

There is not the slightest pretext or reason for calling this the trial of an original action in the circuit court, by stipulation of the parties. The circuit court did not obtain jurisdiction of the action by stipulation, but that court proceeded to try it according to the stipulation and not according to the statute. This was clearly a mistrial or no trial of the action on the appeal. “A trial is the examination of a cause before a judge who has jurisdiction of it according to the laws of the land.” Jacob's Law Dict. tit. “Trial.”

That the circuit court had no jurisdiction to try this action and render judgment as it did, is made certain by several decisions of this court, as well as by the decisions of other courts, I think without an exception. When by the statute of this state appeals from justice's courts could only be taken to the county courts, and not to the circuit courts, an appeal pending in the county court was removed by the stipulation of the parties to the circuit court and there tried. This court held in Dykeman v. Budd, 3 Wis. 640, in such a case, that “the order of the county court changing the venue in this case shows on its face that it was made by consent and not in conformity with the statute,” and that the circuit court had no jurisdiction to try the cause. It was not even pretended that the circuit court had jurisdiction by consent to try the action because it had original jurisdiction over such subject-matters.

In Verbeck v. Verbeck, 6 Wis. 159, the case was improperly certified to the circuit court on the ground that the title to lands would come in question, and in the circuit court the plaintiff proceeded and offered his evidence, and rested his case, without any objection from the defendant, and then the defendant objected to any further proceedings on the ground of a want of jurisdiction. It was insisted by the plaintiff that the trial had so far proceeded by consent, which gave the court jurisdiction. Chief Justice Whiton, in delivering the opinion of the court, said: “The circuit court did not obtain jurisdiction by the action of the parties and the justice;” and then disposed of the reason urged here in favor of the jurisdiction of the circuit court to try the action as an original one: “But it is claimed by the defendant in error that as the circuit court...