Kuder v. Waukesha Cnty.
| Decision Date | 23 June 1920 |
| Citation | 178 N.W. 249,172 Wis. 141 |
| Parties | KUDER v. WAUKESHA COUNTY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to Municipal Court of Waukesha County; James E. Thomas, Judge.
Action by the County of Waukesha against Paul Kuder. There was judgment against defendant, and he brings error. Reversed and remanded, with directions.
The county board of Waukesha county enacted an ordinance fixing a maximum speed limit of not exceeding 30 miles per hour for the operating or driving of an automobile or other similar vehicle on any highway in said county which is maintained at the expense of the county and state or either of them. It further provided that any person violating such ordinance shall forfeit and pay to the county a penalty of not less than $10 nor more than $100 for each such violation, together with the costs of any such prosecution for the collection of such forfeiture. Section 3 thereof further provided that the forfeitures collected for the violation of such ordinance shall be paid to the county treasurer of said county and placed in the highway maintenance fund.
A complaint for a criminal warrant was sworn to by the traffic officer of said county, alleging a violation by the plaintiff in error on August 21, 1919, at the town of Brookfield, in said county, of the provisions of said ordinance, in that while driving and operating a certain automobile along and upon a highway maintained by the said county he did unlawfully drive the same at a rate of speed greater than 30 miles per hour, and praying that said plaintiff in error be arrested and held to answer to the county of Waukesha therefor under the provisions of said ordinance. The plaintiff in error was arrested upon a warrant so directed in such complaint issued out of the municipal court for the Eastern municipal district of Waukesha county.
No objections appear to have been interposed by the defendant before or at the trial as to the course of procedure theretofore taken, and no demand for a jury trial appears to have been made. The case was tried by the judge of said municipal court and witnesses testified for both sides.
At the close of the testimony counsel for the defendant moved to dismiss the action and discharge the defendant. The motion was overruled and the court said:
“I find that the defendant is guilty of speeding, and the sentence of the court is that you, Paul Kuder, pay a fine of $25 and costs, or 20 days in the county jail.”
Thereupon a formal sentence was signed by said municipal judge entitled, “The State of Wisconsin against Paul Kuder,” and reading as follows:
“The sentence of the court now is that you, Paul Kuder, pay a fine of $25 and costs taxed at the sum of $16.42, and in default of payment thereof that you be imprisoned in the county jail of said county, at hard labor, for the term of 20 days, or until said fine and costs are paid, or you shall be thence discharged by due course of law.”
Thereupon a writ of error was issued out of this court to review said record, proceedings, and judgment.
M. A. Jacobson, of Waukesha, and Hoyt, Goff & Morgan, of Milwaukee, for plaintiff in error.
D. S. Tullar, of Waukesha, for defendant in error.
ESCHWEILER, J. (after stating the facts as above).
The plaintiff in error contends that the evidence in the court below was not sufficient to justify a finding that the defendant had violated the ordinance. We have examined the record and think that the evidence therein disclosed was sufficient to justify the reasonable inference drawn therefrom by the trial court that there had been an excessive speed maintained by the automobile in which the plaintiff in error was being driven by his chauffeur at the time in question.
[1] The testimony by the road patrolman upon whose complaint the warrant was issued was that the driving took place on the Blue Mound road and then on the Pewaukee road, in the town of Brookfield, Waukesha county. From the testimony it would also appear that a part of the highway on which the fast driving was done was of concrete. No further description of the highway was given than as above. Plaintiff in error now insists that the evidence was not sufficient to warrant a finding that the speeding had been done upon a county or state highway such as was designated in the county ordinance above set forth. The record discloses, however, that no objections were interposed or efforts made to raise such question on the trial. Were it necessary to decide the question on this appeal, we entertain very serious doubts as to its being a matter of which a trial court might take judicial notice so suggested by respondent. That the trial court as an individual might have knowledge of facts as to its being a county or state rather than town highway would not be the kind of knowledge that is included within the broad field of subjects of general knowledge of which a court as such may take judicial knowledge. Were this a trial by jury the court would have no right to instruct the jury from his individual knowledge of such a local situation that such highway was or was not of such particular kind any more than he might as to the physical condition of a particular...
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