French v. Higgins

• Decision Date: 20 May 1890
• Citation: 77 Wis. 121,45 N.W. 817
• Parties: FRENCH v. HIGGINS ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 121

45 N.W. 817

FRENCH

v.HIGGINS ET AL.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Ashland county.

The plaintiff brought his action before a justice of the peace, against the defendants, to recover money paid for their use. The summons was not served on the defendant Willes. The remaining six defendants appeared before the justice December 7, 1887, and went to trial. After the plaintiff had put in his proofs, and the court had overruled a motion by defendants for a nonsuit, the following proceedings were had, as appears by the docket entries made by the justice: “It being night, the court took a recess until 2 o'clock P. M., December 8, 1887. December 8, 1887, at 2 o'clock P. M., parties appeared by counsel,--plaintiff and defendant. The court, being sick, by consent of parties, took a recess until 10 o'clock A. M., December 9, 1887. December 9, 1887, 10 o'clock A. M., plaintiff appeared by counsel. After waiting one hour, and none of the defendants appearing, by counsel or otherwise, the court, being satisfied from the evidence, determines and adjudges that the plaintiff, C. E. French, have judgment, etc., which judgment is entered in the usual form.” The judgment is against all the defendants except Willes. The return shows that these docket entries were made at the several times such proceedings were had. All the defendants against whom judgment was so rendered, except W. G. French, joined in suing out a writ of certiorari to remove such proceedings and judgment into the circuit court for review. The circuit court reversed the judgment of the justice, and the plaintiff appeals to this court from the judgment of reversal.John F. Dufur, for appellant.

Miles & Shea, for respondents.

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

It is understood that the circuit court reversed the judgment of the justice solely on the ground that the latter lost jurisdiction of the case by his failure to enter in his docket on December 8, 1887, the place to which the recess was taken. Section 3574, Rev. St., requires the justice to enter in his docket “every adjournment, stating at whose request and to what time and place.” Subdivision 5. It was held in Brahmstead v. Ward, 44 Wis. 591, and in several earlier cases there cited, that the place to which the cause is adjourned must appear from the docket entries made by the justice, or he loses jurisdiction. Such is the law of this state. The question is, therefore, does the same rule apply where, as here, the docket entry is not that the cause was adjourned, but that a recess was taken by the court?

It is argued that there is no difference between an adjournment and a recess. It is doubtless true that an adjournment includes a recess, because it suspends for the time being the proceedings in the cause. But we think a recess is not necessarily an “adjournment,” within the meaning of the latter term as used in the statute. Webster says that the word “adjourn,” both in England and this country, is appliedto all cases in which public bodies separate for a brief period with a view to meet again. As applied to a justice's court, it signifies, we think, not...