Conley v. Conley

• Decision Date: 03 February 1891
• Citation: 78 Wis. 665,47 N.W. 950
• Parties: CONLEY v. CONLEY.
• Court: Wisconsin Supreme Court

78 Wis. 665

47 N.W. 950

CONLEY

v.CONLEY.

Supreme Court of Wisconsin.

Feb. 3, 1891.

Appeal from circuit court, Iowa county; GEORGE CLEMENTSON, Judge.

The action was brought before a justice of the peace, under section 3358, Rev. St., as amended by chapter 326, Laws 1882, (2 Sanb. & B. Ann. St. p. 1873,) to remove defendant from certain premises leased to him by the plaintiff, because of the nonpayment of overdue rent. The complaint states that the rent became due November 21, 1889, and that on January 7, 1890, “complainant made demand in writing of said lessee, John Conley, that he pay said rent so due and unpaid, as aforesaid, according to the conditions and agreements in said lease contained;” also that, although more than three days has elapsed since such demand, the lessee had failed to comply therewith, or deliver up the possession of the leased premises, and still neglects and refuses so to do. Upon filing such complaint, the justice issued the summons prescribed in section 3362, Rev. St., which was duly served on defendant. On the return-day, an affidavit, made by defendant of the prejudice of the justice, was filed, and the cause duly transmitted to another justice, who, after overruling a motion by defendant to dismiss the case for want of jurisdiction, proceeded with the trial thereof, and gave judgment for plaintiff that he have restitution of the premises demanded, and for costs. Upon the denial of the above motion, the defendant withdrew from the defense of the action. The defendant sued out a writ of certiorari to remove the proceedings and judgment to the circuit court for review. That court reversed the judgment of the justice. The plaintiff appeals from the judgment of reversal.

*951W. H. Beebe, for appellant.

Aldro Jenks and T. L. Cleary, for respondent.

LYON, J., ( after stating the facts as above.)

The case having been taken to the circuit court by a common-law writ of certiorari, that court could only inquire whether the justice had jurisdiction of the action, for it is settled that the writ only brings up questions of jurisdiction when issued to a judicial tribunal proceeding according to the course of the common law. A justice court is such a tribunal. If, therefore, the justice had jurisdiction of the action, the judgment should have been affirmed, although errors or irregularities, not jurisdictional, may have intervened. The question of jurisdiction of the justice is also the controlling one on this appeal. The statute under which this action was brought (section 3358, Sanb. & B. Ann. St.) gives the landlord an action to recover leased premises by removing the tenant therefrom (1) when the tenant holds over after the expiration of his term without the permission of his landlord, and (2) “when such person holds over without such permission after any default in the payment of rent pursuant to the agreement under which he holds, and three days' notice in writing, requiring, in the alternative, the payment of the rent or the possession of the premises, has been served in behalf of the person entitled to such rent, or the person in possession of the same, in manner provided in section two thousand six hundred and thirty-six of the Revised Statutes for the service of a summons, and such notice may be served by the lessor or any person in his behalf.” The procedure in commencing the action is prescribed in section 3362, the portions of which applicable to this case are as follows: “The party complaining...