Hemmy v. Dnnn, 125 Wis. 275.

seasons. The plaintiff's witness Youker, among other things, testified to the effect that the summer before Henry died, and for two years before he died, the appellant William Dunn, or his son, worked the forty, and that he thought he rented it of Henry, but did not profess to have any knowledge as to that. The plaintiff's witness Davis, an attorney at law at Watertown, testified to the effect that some three months prior to Henry's death, and about August, 1901, he drew a lease from Henry to one Gruenwald of the ninety acres of land, including the forty in question, but that Gruenwald was unable to get possession, and brought suit against Henry for breach of covenants in the lease for renting land for which he had no title. The defendant William Dunn and his two sons testified to the effect that in the fall of 1899 one of the sons rented the fifty-acre piece of his uncle Henry; that Henry then admitted that he did not own the forty acres in question; that William Dunn was in the exclusive possession of that forty, and that he and his sons worked and occupied the same during the seasons of 1900 and 1901 without paying any rent and without any lease or agreement to pay rent to Henry or any one; and that William Dunn paid the taxes on that forty during those two years. It is, moreover, conceded that William Dunn was in possession at the time Henry died, and has been ever since. We must hold that the findings of the court to the effect that Henry Dunn was in the exclusive possession of the forty acres of land in question for twenty years immediately preceding his death are against the clear preponderance of the evidence. On the contrary it is practically undisputed that, during the two seasons immediately prior to his death, William Dunn was in such possession, and he and his son worked and occupied that forty. The assumption that William Dunn was in such possession and occupancy under a lease from Henry Dunn is without foundation. The twenty years from the time it is claimed by the plaintiff that Henry Dunn first entered into such possession

In re Shinski, 125 Wis. 280.

October 1, 1881-did not expire until October 1, 1901, within the two months immediately preceding his death; and yet it sufficiently appears from the plaintiff's own witnesses that long prior to the two months the running of the statutes of limitation had for two seasons been interrupted.

By the Court.-The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint

IN RE SHINSKI.

May 2-June 23, 1905.

Habeas corpus: Jurisdiction: Errors reviewable.

1. It appeared from the record in a habeas corpus proceeding that petitioner had been arrested, tried, convicted, and sentenced for an offense; that the counsel assigned by the court to defend petitioner specifically waived the presence of petitioner in court during the impaneling and swearing of the jury; that thereafter petitioner and his counsel appeared in court, accepted the jury as impaneled and sworn, and proceeded with the trial; and that during the progress of the trial, and at the request of petitioner's counsel and in the presence of petitioner, the court excused one of the jurors, and the trial, by consent of all parties, proceeded with eleven jurors. Held, that whether any error was thereby committed was not before the court on habeas corpus and could not be reviewed in that proceeding.

2. Where accused is brought before a court on an information charging him with an offense of which the court has jurisdiction and to which he pleaded not guilty, that court has jurisdiction to try him upon the charge made and proceed to judgment and sentence, and, if the court therein committed error, it was error within its jurisdiction and such error cannot be reviewed on habeas corpus.

3. Unless there is such want of jurisdiction in the court as to render its judgment void, a person convicted and under sentence for an offense cannot be relieved on habeas corpus, but resort must be had to a writ of error.

In re Shinski, 125 Wis. 280.

4. A writ of habeas corpus does not reach beyond a commitment to the proceedings leading up thereto, where the person in custody is detained by virtue of the final order or judgment of a court having jurisdiction of the subject matter and of the per

son.

APPLICATION for a writ of habeas corpus. Denied.

The petitioner, John Shinski, asks to be discharged upon habeas corpus from imprisonment in the house of correction in Milwaukee county, on the ground that his imprisonment is illegal. A writ of habeas corpus was allowed by this court on application of petitioner on the 5th day of April, returnable before this court on the 2d day of May, 1905. Return was made to said writ by Wm. H. Momsen, inspector of the house of correction, showing proceedings had in municipal court by reason of which the respondent has the custody of the petitioner.

Curtis & Mock, for the petitioner.

For the respondent there was a brief by the Attorney General and F. E. McGovern, district attorney, and Walter D. Corrigan and Guy D. Goff, of counsel, and oral argument by Mr. Corrigan.

KERWIN, J. It appears from the record upon this hearing that the petitioner was arrested, tried, and convicted in the municipal court of Milwaukee county upon a charge of assault with intent to do great bodily harm, and upon such conviction was on the 31st day of December, 1904, sentenced to confinement at hard labor in the house of correction of Milwaukee county for the term of one year and six months. Attached to the petition for a writ of habeas corpus, and as part of the record before us, are certified copies of the information charging petitioner with the crime of assault with intent to do great bodily harm, record of the municipal court of the trial had thereon, and certificate of conviction and sentence. The alleged defects in the trial and proceedings re

In re Shinski, 125 Wis. 280.

sulting in conviction and sentence, upon which petitioner relies for his discharge, are that the petitioner was tried before the municipal court of Milwaukee county, together with one Louis Shinski, upon information for assault with intent to do great bodily harm, and that the jury before whom petitioner was tried was drawn, impaneled, and sworn while neither petitioner nor said Louis Shinski was in court, and that while the trial was in progress, and before a verdict had been returned, the court excused one of the jurors from further service, leaving only eleven jurors before whom petitioner was tried upon said charge, and that the verdict of guilty upon the charge was rendered by eleven jurors instead of twelve. It appears from the record that counsel assigned by the court to defend petitioner specifically waived the presence of petitioner in court during the impaneling and swearing of the jury, and that thereafter and on December 13, 1904, petitioner and his said counsel appeared in court and accepted the jury as impaneled and sworn, and proceeded with the trial; that on the 15th day of December, 1904, and during the progress of the trial, and at request of petitioner's counsel and in the presence of petitioner, the court excused one of the jurors on account of the illness of his brother, and the trial, by consent of all parties, proceeded with eleven jurors.

Whether any error was committed by the trial court as claimed by petitioner here is not before us and cannot be reviewed in this proceeding. There is no question but that the municipal court obtained jurisdiction of the person of the petitioner upon the charge made against him. He was brought before the court on information charging him with the of fense, to which he pleaded not guilty. The court had jurisdiction to try him upon the charge made and proceed to judg ment, and authority to sentence the accused to punishment by confinement at hard labor in the house of correction of Milwaukee county, and, if the court committed error, it was error within its jurisdiction, and such error cannot be re

In re Shinski, 125 Wis. 280.

viewed upon habeas corpus. As said in State ex rel. Welch v. Sloan, 65 Wis. 647, 651, 27 N. W. 618:

"It is only when the court pronounces a judgment in a criminal case which is not authorized by law under any circumstances in the particular case made by the pleadings, whether the trial has proceeded regularly or otherwise, that such judgment can be said to be void, so as to justify the discharge of the defendant held in custody by such judgment."

It is elementary that a writ of habeas corpus cannot be made to perform the functions of a writ of error, and that, upon habeas corpus, only questions of jurisdiction of the court or officer to issue the process upon which the prisoner is held in custody can be considered. Such writ "does not reach beyond the commitment to the proceedings leading up thereto, where the person in custody is detained by virtue of the final judgment or order of a court having jurisdiction of the subject matter and the person." State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; sec. 3408, Stats. 1898. But it is unnecessary to pursue the matter further, since this court has so often passed upon the question, and has uniformly held that, unless there is such a want of jurisdiction in the court as to render the judgment void, the petitioner cannot be relieved on habeas corpus, but resort must be had to a writ of error. In re French, 81 Wis. 597, 51 N. W. 960; In re Eldred, 46 Wis. 530, 1 N. W. 175; In re Milburn, 59 Wis. 24, 17 N. W. 965; In re Graham, 74 Wis. 450, 43 N. W. 148; In re Pikulik, 81 Wis. 158, 51 N. W. 261; In re Schuster, 82 Wis. 610, 52 N. W. 757; In re Eckart, 85 Wis. 681, 56 N. W. 375; State ex rel: Dunn v. Noyes, 87 Wis. 340, 58 N. W. 386; In re Rosenberg, 90 Wis. 581, 63 N. W. 1065, 64 N. W. 299; In re Roszcynialla, 99 Wis. 534, 75 N. W. 167.

By the Court.-The demurrer to the return is overruled and the petitioner, John Shinski, is hereby remanded to the custody of the keeper of the house of correction for Milwaukee county.