Goyke v. State

• Decision Date: 10 November 1908
• Citation: 117 N.W. 1126,136 Wis. 557
• Parties: GOYKE v. STATE.
• Court: Wisconsin Supreme Court

136 Wis. 557

117 N.W. 1126

GOYKE

v.STATE.

Supreme Court of Wisconsin.

Nov. 10, 1908.

For majority opinion, see 117 N. W. 1027.

*1126BARNES, J. (dissenting).

Mankind is sometimes prone to emphasize the correctness of conclusions reached after much doubt and hesitation by the use of positive and often extravagant language. It seems to be conceded in the opinion of the court that, under the authority of Carpenter v. Shepardson, 43 Wis. 406, and Montgomery v. Town of Scott, 32 Wis. 249, the circuit court obtained jurisdiction of the person of the defendant by reason of his filing an affidavit in the municipal court, stating that he could not have a fair trial therein, and demanding that his cause be sent to the circuit court for trial, and by virtue of his appearing in the latter court without objection and defending his cause therein. The doctrine of these cases is amplified and supplemented by Rindskopf v. State, 34 Wis. 217,Jerdee v. State, 36 Wis. 170,State v. Homey, 44 Wis. 615,Baker v. State, 56 Wis. 568, 14 N. W. 718, and by section 2643, St. Wis. 1898, providing for voluntary appearance in civil actions. But the judgment is reversed because the circuit court had no jurisdiction of the subject-matter of the action. If it is a fact that there was a lack of such jurisdiction in the trial court, its proceedings were coram non judice, and the conclusion of this court is manifestly correct, although it appears that the defendant has had a fair trial, not a single exception or objection being called to our attention aside from the jurisdictional question. It is urged that the circuit court was by implication deprived of jurisdiction to try bastardy actions, because exclusive jurisdiction *1127of such actions was conferred upon the municipal court created by chapter 24, p. 66, Laws 1895, and it is said that: “The language in respect to the matter is very plain. There is no controversy as to its import. Therefore we need not quote or discuss the provisions.” In support of the conclusion that the circuit court was deprived of jurisdiction by chapter 24, p. 66, Laws 1895, Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704, and Burnham v. Norton, 100 Wis. 8, 75 N. W. 304, are cited. I think it is far from being plain that exclusive jurisdiction, or, in fact, any jurisdiction at all in bastardy actions, is conferred on the municipal court. There is not a word in the act directly conferring such jurisdiction. It is only by a somewhat farfetched implication that it is conferred at all. The act provides that the preliminary examinations held by the examining magistrates shall be certified and returned either to said municipal court or to the municipal court of Neenah and Menasha. The act is silent as to what shall be done when the examinations are so certified. It does not say that the municipal court shall try such actions. It would seem that, as to an inferior court created by statute and dependent upon statute law for its powers, the language of the act defining its powers should define them with accuracy and certainty, rather than that they should be supplied by doubtful implication. It is probably true that the Legislature intended that this court should have jurisdiction to try bastardy actions, but it has not said so. There is no express provision in the statute under discussion which deprives the circuit court of its general jurisdiction to try bastardy actions that are properly before it. There is no language therein from which a withdrawal of such jurisdiction can be inferred, except the provision to the effect that preliminary examinations shall be certified and returned to one of the two municipal courts of the county. In the present case two implications must necessarily be drawn to deprive the circuit court of jurisdiction--one that the Legislature intended to confer jurisdiction in such cases upon the municipal court, and the other that it intended to deprive the circuit court of any jurisdiction over them. In support of the view that the circuit court has been deprived of jurisdiction, it is said that general jurisdiction was conferred on county courts over matters within the jurisdiction of the circuit courts before county courts were created; that the law creating county courts did not, by its express provisions, deprive the circuit courts of their former jurisdiction; but that such law in effect and by implication made the jurisdiction of the county courts exclusive. The cases of Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704, and Burnham v. Norton, 100 Wis. 8, 75 N. W. 304, are cited in support of this view. The comparison is apt and appropriate, but I do not think the decided cases sustain the view adopted by the court. In Meyer v. Garthwaite the court said: “It seems to be settled in this state that the circuit court as a matter of equity has a general, original jurisdiction over matters arising in the administration of estates concurrent with the county courts. 1 Pomeroy, Eq. Jur. §§ 346-351; Glascott v. Warner, 20 Wis. 654;Tryon v. Farnsworth, 30 Wis. 577;Brook v. Chappell, 34 Wis. 405;Catlin v. Wheeler, 49 Wis. 507, 520, 5 N....