State ex rel. Cameron v. Roberts

• Decision Date: 16 March 1894
• Citation: 87 Wis. 292,58 N.W. 409
• Parties: STATE EX REL. CAMERON v. ROBERTS.
• Court: Wisconsin Supreme Court

87 Wis. 292

58 N.W. 409

STATE EX REL. CAMERON

v.ROBERTS.

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Certiorari, on the relation of Mary E. Cameron, against a justice of the peace. A motion by John Roberts to quash the writ was denied, and he appeals. Reversed.

This is an appeal from an order of the circuit court of Milwaukee county denying the motion to quash a writ of certiorari issued out of that court to a justice of the peace to reverse a judgment rendered by him in an action for unlawful detainer, in which the above-named defendant was plaintiff, and the above-named relator and one Mrs. R. L. Fatzinger were defendants; and it was alleged, in substance, in the petition for the writ, that, at the time for appearance of the parties, the defendants appeared by their attorney specially, and, for the purpose of removing the cause, one of the defendants, Mary E. Cameron, filed her affidavit of prejudice for the removal of the cause to the next nearest justice qualified to try the same, and paid the required fee, and withdrew from the case, and took no further proceedings in it, but that the justice refused to change the place of trial, and on the same day tried the cause, and rendered judgment of restitution, with costs against the defendants. The certified copy of the docket entries of the justice, returned by him to the writ, states: “Defendant Mary E. Cameron appears specially, and files affidavit of prejudice, and pays me 75c., and asks to have case transmitted to the nearest justice, which the court refuses to do, on the ground that the affidavit of prejudice is signed only by the defendant Mary E. Cameron, and is made on her behalf only. The defendant Mrs. R. L. Fatzinger appears by A. C. Reitbrock, and denies each and every allegation of the complaint.” The transcript proceeds to state that the cause was tried, giving the names of the witnesses sworn, and the finding and judgment of the court against the defendants, as stated in the petition. The certificate of this transcript is in the usual form, and “that the annexed papers are all the papers in the case.” Among these papers is the affidavit of the defendant Cameron for removal, but it makes no reference to the defendant Fatzinger, nor does it purport to have been made on her behalf; and also a written appearance to the effect that “the defendants above named come and demand that the papers herein, and this action, be transferred to the next nearest justice of the peace qualified to try the same,” and was dated and filed on the return day, and signed by H. L. Buxton as defendants' attorney; and also a paper--apparently the minutes kept by the justice, subscribed by him--containing the evidence given by witnesses, and is in other respects to the same effect as the certified transcript. It states the appearance of the defendants by Henry L. Buxton, their attorney, the making and filing of the affidavit by the defendant, and the ruling thereon, and that “the defendants decline to appear further in the case.” After giving the testimony of one witness, it states that “the defendant Fatzinger now appears by A. C. Reitbrock, her attorney, and denies each and every allegation of the complaint,” and shows that the trial proceeded, and other evidence was produced. On the affidavit of the defendant in the writ of certiorari, “the records and files therein, including relation, writ, return, and all the papers filed, an order was made requiring the relator to show cause why the writ of certiorari should not be quashed, etc.” Upon the hearing, an order was made denying this motion, from which defendant Roberts appealed.Turner & Timlin, for appellant.

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