Volume 1 — Wisconsin Reports

Nickerson, the defendant in error, commenced a suit before a justice of the peace of Walworth county, against Winne, the plaintiff in error, by summons returnable the 3d day of April, 1852, and declared against said Winne on book account; to which Winne pleaded the general issue. The issue was tried before the justice, who rendered judgment in favor of Nickerson, the plaintiff below, for $10.40 damages, and $14.36 costs.

mu- 1 action, commenced by Lamar, the deltas was an ’ J . ’ fendant in en.01. , ’md® the statute “ Of forcible entries and unlawful detain fo1' tbe songful detention of a house, before a U of th® P®ae® of Mllwmk®® county.

<p>A motion for security for costs, is addressed to the sound discretion of tlie court, , and cannot he assigned for error, unless it is made to appear that there was a flagrant abuse of such discretion.</p> <p>When a defendant has appeared on the return day of the writ, before a justice, pleaded to the action, witnesses been sworn upon the issue, and the cause been submitted to the justice, who renders judgment, from which an appeal is taken, it is too late to move in the County Court to dismiss the cause for defective service, or for want of service of process.</p> <p>His appearance, plea and submission, is a waiver of all objection to the service, or want of service of process, and gives the court jurisdiction of the person.</p> <p>In replevin before a justice, the plea of “ not guily,” puts in issue, as well the plaintiff’s title or right of possession in the property, as the wrongful taking and detention.</p> <p>The finding of the justice, or of the County Court, is not complete upon the issue of not guilty, unless it embrace the right of possession of the plaintiff. Without such finding, a judgment of return, or delivery of the property to the plaintiff, is not authorized, and is erroneous.</p> <p>The finding of the Justice or County Court, is equivalent to the verdict of a jury, and having been entered of record, this court cannot enlarge it by intend, ment.</p> <p>On the issue of “ not guilty,” both parties are struggling for the property, and the title or right of possession must 'be found, before it can be awarded to one or the other.</p>

On the 15th day of January, 1852, James Holcomb, the defendant in error, commenced a suit by attachment before Win. 1ST. Seymour, a justice of the peace of Dane county, against George F. Gibbs, the plaintiff in error. The writ was returned the 19th of January, 1852, “served by attaching one grey mare belonging to the defendant.

This was an action of assumpsit, originally commenced by the said John Wooley against Elizabeth Wooley, administratrix of Joseph Wooley, deceased. The record shows a surrender of the trust by the administratrix, and the substitution of the present plaintiff in error as administrator ; it also shows the death of John Wooley, subsequent to the commence ment of the suit, and a revivor of the action in the name of the present defendant in error, as his administrator.

APPEAL EEOM THE WINNEBAGO CIRCÜXT COURT. The complainant below filed his bill against the defendants in the Winnebago Circuit. One of the defendants answered, confessing all the material allegations of the bill. The other defendant filed a general demurrer. The Circuit Court sustained the demurrer, from which decree the complainant appealed. The statement of the bill, and the points of counsel, are fully stated in the opinion of the court.

This was an action of assumpsit commenced by the defendants in error, against the plaintiffs in error, by summons in a Justice’s Court, in the city and county of Kacine, returnable the 9th day of July, 1852, which was personally served on both of the defendants named therein. The plaintiffs below, and the defendant, Barnes, appeared before tbe justice on tbe return day Tbe defendant, Killip, did not appear.

.ERROR TO THE ROCK COUNTY COURT. This cause was originally commenced in a justice’s court Toy the defendant in error against the plaintiff in error, on the 18th day of January, 1851, and issue wasjoined thereon on the 1st day of Febuary, 1851. The plaintiff declared upon a promissory note which was filed with the justice.

ERROR, to Milwaukee county court. This case is folly stated in the opinion of the court. The errors assigned are : 1. The court below erred in ordering the defendant below to pay ten dollars, attorney’s fees, to the plaintiff, as a condition of the continuance of said cause at the December term, 1852, of the County Court. 2. The court below erred in not continuing said cause, and in proceeding to try the same at the December term, 1852, of said County Court. 3.

Henry Sanders, the defendant in error, commenced a snit in a Justice’s Court against Nancy Emerick, the plaintiff in error, Tby summons returnable the 10th day of February, 1852, and declared against the said defendant below, as follows : “ Henry Sanders, plaintiff in this cause, complains of Nancy Emerick, defendant in this suit, in a plea of trespass on the case upon promises ; for that whereas heretofore to-wit: on the first day of January, 1851, at Walworth, in said…

<p>ERROR TO THE CIRCUIT COURT OF LA FAYETTE COUNTY.</p>

This was a motion, made at this present term, by the counsel for the defendant in error, to set aside the bill of exceptions, on the ground that the same was not settled at the time when notice for that purpose had been served, but at another time, of which no notice had been given the opposite party. This motion was supported by affidavits filed with it, and resisted by counter-affidavits, filed by the oppo-sity party, the facts set forth, in which are stated in the opinion.

This was an action of assnmpsit, brought by Tor-rier Tollensen, against Ole Gunderson, in the County Court of Dane county, at the May term thereof, 1853, to recover the sum of $110, and interest thereon, money had and received by the defendant, to and for the use of the plaintiff on the 27th day of November, 1849. The defendant pleaded the general issue, and a special plea of set oft' and filed a bill of particulars of such set off, upon which issue was taken.

At the term of this court, 185 , the petitioner filed his petition, thereby commencing suit against the State in conformity with the act of the legislature, entitled “ an Act to direct in what manner, and in what courts suits may be brought against the State,” approved February 9, 1850.

This was an action commenced Before a Justice of the Peace, of Rock county, by Brooks against Allen, in assumpsit, for Building twelve rods of fence. The declaration was on the common counts, and also for work and labor, and materials found in Building a gravel fence, made verbally Before the justice. In the Justices’ Court the plaintiff had judgment. The defendant appealed to the Rock County Court, where the cause was tried at the term of February, A. D. 1852.

This is an action of assumpsit, commenced by the plaintiff in error, against the defendant in error,, in the Circuit Court of Jefferson county, on the 31st day of October, 1851. The cause of action was a promissory note, for the sum of $'729.31, dated, New York?

This was an action of replevin brought by Ira Warner, plaintiff below, against John Hunter, defendant below, before a justice of the peace of that connty, to recover the possession of a horse. Warner ob tained judgment before the justice, and Hunter appealed to the County Court. A trial was had in the County Court, which resulted in a judgment for the plaintiff.

ERROR, xo Milwaukee county court. This was an action of assumpsit brought in a Justice’s Court, to recover ten dollars damages, for the services… Held: that it was insufficient to support the plaintiff’s declar ration, and that it showed the plaintiff to have been agent of the defendant and another in the same transaction, and the plaintiff was not, therefore, entitled to recover for his services for the defendant in such transaction, and rendered judgment for the defendant.

The plaintiff in error, and his co-defendant below, were tried on an indictment, for the wilful murder of John Gullen, at the May Term of the Circuit Court for Milwaukee county, and were both found guilty of murder in the first degree, and the punishment of death was awarded by the jury, in conformity with a late act of the legislature. Judgment was accordingly rendered thereon and sentence passed.

This cause was originally commenced before a justice of the peace of Green county, in assumpsit, by the defendant in error, against Marmont B. Edson and Margaret B. Edson, his wife, and judgment was rendered against both of said defendants, on the 12th day of August, A. D. 1851.

The plaintiff in error was indicted at the March term of the Rock Circuit Court, 1853, for the crime of rape, and convicted. The trial commenced on the 29th day of March, 1853, and continued until about 3 o’clock in the afternoon of the 30th day of March, when the case was given to the jury.

The plaintiff in error was indicted at the last October Term of the Circuit Court of Grant county, for uttering counterfeit coin. The indictment contains .two counts. The first count charges the plaintiff' in error with having on the 15th day of September, 1852, uttered and passed a counterfeit quarter-eagle to one Amos Chase, “ imlawfull/y, myustly amd deceitfull/y? with knowledge of the character of the coin, and with intent to defraud the said Chase, «fee.

This is a motion to suppress the depositions of M. B. Butterfield and Champion S. Chase, taken in this cause and used on the hearing below.

<p>The party entitled to recover costs, as for “ solicitor’s” fees, is determined by the final result of the suit.</p> <p>Whatever may have been the proceedings, or adjudications, the matter of solicitor’s fees remain in abeyance until the final result, and is determined thereby in favor of the party in whose favor the final decree is pronounced.</p> <p>Interlocutory costs, so far as relates to solicitor’s fees, must follow the final adjudication, and may be taxed by items, in favor of the prevailing party, to the maximum prescribed by the statute.</p>

The relation in this case represents that, on the 4th day of March, A. D. 1853, the legislature passed an act, dividing the county of Washington, by setting off therefrom a certain portion of territory, and erecting the same into a new county by the name of Ozaukee. That by the said act, the county seat of Washington county was established at West Bend, and the times fixed for holding the terms of the Circuit Court at that place.

The plaintiff in error was indicted at the April term of the Circuit Court for the county of Fond du Lac, for the seduction of Eliza Pierce.

The defendant in error commenced proceedings under chapter 120 of the Revised Statutes, concerning the lien of mechanics and others, by filing his petition for a lien against and upon the tavern house of the plaintiff in error, in the county of Columbia, on the 2d day of September, A. D. 1851, and at the November term of said court, the plaintiff below obtained judgment, lien, &c. The bill of exceptions discloses a number of points in which the ruling of the court below was…

This case was precisely similar to the preceding, with the single exception that, after the said John Pettifer had been called as a witness, and testified against the objection of the opposite party, and the plaintiff had rested his case, the defendant recalled Pettifer and examined him. The counsel for the defendant in error insisted that this was a waiver by the defendant below, of all objection to the witness on the ground of competency.

This was an action of trespass to the person, instituted Tby Stephen S. Eand against the plaintiff in error. The declaration was filed Sept. 18, 1850. On the 24th October, 1850, the pleas of the general issue, and son assault demesne, were interposed by the defendant. On the first plea an issue was made up. On the 2d plea no issue was ever made up or default taken.

This was an action of assumpsit, commenced by attachment, by the defendants in error, against the plaintiff in error, before Edward El well, a justice of the peace, of the county of Sheboygan, on the 21st day of January, 1851, returnable the 28th January.

This case was reported by the judge of the Circuit Court of Columbia county, to this court, for opinion upon a question of law which arose at the trial. The defendant was indicted for murder. Held: commencing on the third Monday of the same April. The trial commenced on Thursday of the week, and continued until Wednesday of the third week.

This was an action of assumpsit, brought by the plaintiff in error, against the defendant in error, as endorser of two promissory notes for $510.36 each, made by Joseph A. Arnold; one dated October 6th, the other October 20th, 1845, payable each three months after date to the order of Jonathan E. Arnold, at 44 Cedar street, New York, and by Mm endorsed to plaintiff, by writing on tlie back of each, “ J. E. Arnold, Milwaukee, W. T.” The defendant pleaded tlie general issue;…

This was an action of trespass de bonis asportatis, tried at the February term, A. D. 1852, of the Milwaukee Circuit Court. Plea, the general issue, with notice, justifying the taking of the goods as the property of Caleb Wall, by virtue of a writ of attachment issued out of the District Court of ,the United States for the District of Wisconsin, against the goods and chattels, &c., of the said Wall.

This was a motion to dismiss the cause for want of jurisdiction. At a former term, the attorney-general filed an information in the nature of a quo warranto against Levi Blossom and others, charging that they were exercising the powers and privileges- of banking, and issuing, for the purpose of circulation as money, bank bills, Ac.

This proceeding arose on an order made and entered by tbe Judge of Probate of tbe County of Crawford, as appears by transcripts from said Probate Court, lodged and now remaining in tbe office of tbe clerk of tbe Circuit Court of said county.

<p>Section. 25 of chapter 15 of the Revised Statutes, does not require a person to give in, or make out for the assessor, on his demand or request, a list or amount of his property liable to taxation. But it authorizes the assessor to require the person who voluntarily furnishes such list, to make oath to the fullness and correctness thereof.</p> <p>Any person who refuses to make oath to the fullness and correctness of such list voluntarily furnished by him, is not permitted to reduce his assessment by virtue of the provisions of the 26th section.</p> <p>If a person makes his affidavit, and in other respects complies with the requisites of the 26th and 29 th sections of chapter 15, he is entitled to have his assessment reduced to the amount stated.in the affidavit.</p> <p>The assessors cannot question or dispute the truth of the affidavit. If it is in conformity with the statute, it is conclusive upon their action.</p> <p>Section 26 prescribes the matters which the affidavit shall contain, and the person complying with the provisions of the statute is entitled to the benefit of it.</p> <p>When the assessors, or any other officer, refuse to perform an act which it is clearly their duty to do, a mandamus is the proper remedy to compel such performance.</p>

This was an action of trespass on the case commenced, Iby the defendant in error against the plaintiff in error, before a justice' of the peace of Jefferson county, by whom judgment was rendered in favor of the defendants below, now plaintiffs in error. The plaintiff below sued out a writ of certiorari from the County Court of Jefferson county.

This was an action of replevin commenced by the plaintiff in error against the defendant in error before Reuben Wells, Esq., a justice of the peace of said county of Washington, for the recovery of certain property valued at $17.00. The property was reple-vied by the officer, and upon the return of the writ, the parties appeared, the defendant pleaded the general issue. The issue was tried by the justice.

This was an action of trespass, originally institut-ted Iby summons in a Justice’s Court, in which William Mulks was plaintiff, and William Mericle and Noah Grover were defendants.

This was an action of debt before Win. M. Grozier, Esq., justice in Rock County, commenced by Barker & Love against Abbott & Rockwell.

This case is stated fully in the opinion of the Court. The only objection to the judgment was, the award-' ing of costs. The court below erred in rendering judgment for costs in favor of the plaintiffs below, but should have given full costs to the defendant below. JR. S.p. 656, § 4 ; 655, §5.

ekrou to Milwaukee county court. The defendant in error (plaintiff below) recovered a judgment in the County Court of Milwaukee county, January 8, 1851, against Samuel Blanchard' and Eli-phalet Baker, for f128.38 damages, besides costs. On the' 22d day of May, 1852, execution was issued thereon with garnishee clause.

This was an action of assumpsit, brought by the defendant in error against the plaintiff in error in the County Court of Racine county, upon two promissory notes, both originally payable to S. S. Stevens or bearer. The plea was non-assumpsit, with notice, that the notes were transferred after maturity, also notice of set off against the payee. The cause was tried by a july 0f gix, in conformity with, the act establishing County Courts.

This was an appeal from a decision of the board of supervisors of Grant County, upon an account presented by the plaintiff in error, by which the same was allowed in part, and rejected in part, and an appeal taken by the plaintiff in error to the Circuit Court.

The facts of the case are fully stated in the opinion of the court. I.The plaintiffs cannot recover in this case, he-cause, 1. The hill does not state that the notes and mortgage are the property of the plaintiffs. Miff. FI. 38, 45, 50 and note 1; F. Stat. 413, § 5 ; Smith's Oh. Ft. 83 and Note A. 2. The hill does not state there was a defeasance ; if not, ejectment, and not a hill for foreclosure was the remedy. II.

This cause was brought by the defendants in error against the plaintiffs in error upon two promissory notes.

[The rules of this court require the plaintiff in error, or appellant in chancery, to make an abstract of the case which he presents to the court, made out from, the record, and one which the record will justify in all its parts, and one which will exhibit to the court all the essential matters of the record to be brought under review before this court, and that the same shall be printed, &c. The printedcase ” brought before us in this court by the plaintiff in error,…

This case arose under the garnishee process provided by the Revised Statutes. It was originally commenced in a Justice’s Court, judgment was rendered against the defendant in error, taken by appeal to the County Court, where the judgment of the justice was affirmed, and thence brought here by writ of error. The case is fully stated in the opinion of the court, and also the points made by counsel in the argument at bar.

On the lfth day of July, 1850, the jhaintiff in error commenced suit in replevin against the defendant in error, Before a justice of the peace of Columbia county, for a quantity of pine lumber, where he ob-tamed judgment. The defendant appealed to the County Court, where the plaintiff became non-suited, and judgment was rendered against him for the value of the property and costs.

ERROR, to Milwaukee countt court. This was an action of trespass on the case, originally instituted by warrant in a Justice’s Court, in which Harvey Birchard was plaintiff and Frederick A. Sprague, Jr., was defendant. The plaintiff declared for the forcible taking, leading? riding and driving away of two horses, the property of the plaintiff, of the value of one hundred ^0parg the defendant, and for the conversion of the same to the defendant’s use.

On the 23d day of September, 1848, John Martin filed his bill in the Circuit Court of Walworth county, by J. 1ST. Stoddard, his solicitor, against David S. Wells, Grove Adams and James A. Stevens, for the foreclosure of a mortgage executed by the defendants to the complainants, to secure the payment of the purchase-money of the premises mortgaged, and conditioned for the payment of $2,300, and interest at seven per cent, per annum, payable annually, on the first day of…

Tibbitts Tbe declaration contains only one count, and recites, that whereas before tbe committing of tbe grievances hereinafter mentioned, to wit: At tbe October term, 1846, tbe United States recovered a judgment against one Ezra H. Gleason, for $182.91, in tbe District Court of tbe United States for tbe District of Wisconsin ; and that afterwards, to wit, tbe 11th day of February, 1851, tbe said defendant who then was, and from thenceforth continued to be, tbe attorney of…

The defendant in error commenced a suit against Alexander Mitchell, the plaintiff in error, before a justice of the peace, by summons, returnable the 6th day of July, A. D. 1852. On the return day the plaintiff below appeared. The defendant did not appear, but made default. The plaintiff filed his bill of particulars, declared for work and labor, for damages $100.

Information in the nature of a quo warranto, filed lby the attorney general on the relation of John Taylor, charging that Henry Brown, of the town of Ches ter, in the county of Dodge, for the space of two months and upwards, has held and 'exercised, and still does exercise the office of State’s j>rison commissioner, of the State of Wisconsin, without any legal election, appointment, warrant or authority whatever, therefor.

This is a hill to redeem certain lands situate in the counties of -Jefferson and Dodge, and for other relief, and was filed in the Circuit' Court of Iowa county, the 11th day of April, 1849. At the April term of said Circuit Court, the cause came on to he heard upon the hill, answer and proofs, and a final decree for redemption was made therein at the said term.

[This motion and the following petition of James Rogan, one of the defendants, are so nearly allied to the principal case, that it is deemed advisable to publish them together in this volume, although they more appropriately belong, in point of time, with the cases of the December term, assigned for the next volume.] At the last term, the case of Patrick Rogan vs. Martin O. Walker and others, was regularly pending in this court on appeal from the Circuit Court of Iowa…

As will Le seen by the preceding reports, that this case was brought to this court from the Circuit Court of Iowa county by appeal from the final decree of that court; that at the June term the cause was heard on appeal and a final decree rendered.

This was a proceeding for unlawful entry, and un1 lawful detainer, commenced before a justice of the peace of Columbia County, by the plaintiff in errer against the defendant in error. The defendant was found guilty, and the plaintiff had judgment of restitution and for costs. The defendant then appealed to the County Court, and the cause was tried at the May term, 1863, by a jury.