CASES DETERMINED

AT THE

January Term, 1878.

HEPLER VS. THE STATE.

JUSTICES' COURTS: CRIMINAL ACTION: JURISDICTION. Record must show cause determined within one day after return of warrant, or continuance for cause.

1. A conviction of crime, in justice's court, must appear on its face to be within the justice's jurisdiction.

2. Under sec. 5, ch. 121, R. S., as amended by ch. 35 of 1868, a J. P., on return to him of a criminal warrant, with the accused, must hear, try and determine the cause within one day, unless it be continued for cause; and if more than one day intervene between the return and the judgment, the conviction must show the continuance for cause-perhaps the cause itself.

3. Where the justice's docket shows an interval exceeding one day between the return and the judgment, without showing any continuance, it shows a loss of jurisdiction, notwithstanding a further statement therein that the judgment was rendered "immediately."

ERROR to the Circuit Court for Columbia County. This was a prosecution for selling intoxicating liquors without license. On defendant's affidavit of the prejudice of the justice before whom the action was commenced, it was sent for trial to one Stanley, another justice, who found the defendant guilty and rendered judgment against him. The cause was then appealed to the circuit court, where defendant was found guilty, and judgment rendered against him; to reverse which he sued out his writ of error.

Hepler vs. The State.

The return of justice Stanley to the circuit court states that the papers in the action were received by him March 16, 1877. It then states the proceedings at the trial, without showing any continuance, and adds: "Having heard the allegations and proofs, the court finds the defendant guilty of the offense charged in the complaint. Whereupon I immediately (on the 19th day of March, 1877) rendered judgment against the defendant," etc.

T. L. Kennan, for the plaintiff in error, cited sec. 1, ch. 35, Laws of 1868; and he contended that it must appear from the face of the proceedings that the justice acted within the scope of his jurisdiction, or the judgment is void; citing Freeman on Judgments, §§ 517, 527, and numerous adjudged cases. The Attorney General, for the state.

RYAN, C. J. It has been too long and too well established for discussion, that the justice's conviction must appear on its face to be within his jurisdiction.

Sec. 5, ch. 121, R. S., amended by ch. 35 of 1868, requires that the justice, on the return of the warrant with the accused, shall proceed to hear, try and determine the case, within one day, unless continued for cause. This provision must receive a reasonable construction. It cannot be construed to impose impossibilities upon the justice; or to require him to dispose, within one day, of a case necessarily occupying more than one day in hearing. The necessary length of a case would be cause for its continuance from day to day. Other causes might warrant a longer continuance. But the statute does require the justice to hear, try and determine the case of a prisoner brought before him within the day, unless it be continued for cause. The justice's jurisdiction can survive the day by continuance only. If more than one day intervene between the return and the judgment, the conviction must show the continuance for cause; perhaps the cause itself.

The justice's docket here shows an interval of some three

State vs. Stone.

days between the return and the judgment, and does not show any continuance. This is fatal. The jurisdiction of the justice to convict appears on the face of the proceeding to have been lost before the conviction.

The justice, indeed, undertakes to connect the day of his judgment with the day of the return by stating that he rendered judgment immediately. This will not do. It rather repels than imports a continuance. It is but the justice's application to the case of a very elastic word (Richardson v. End, ante, p. 316); and can be held to signify no more than that the justice did, in what he considered a reasonable time, that which the statute requires him to do on the day of the

return.

By the Court.-The judgment of the court below is reversed, and the defendant discharged.

STATE VS. STONE.

Repeal of penal statute.

Since the repeal of section 6, ch. 273 of 1874, judgment will not go against one convicted of a misdemeanor under that section, upon complaint entered prior to the repeal. Rood v. Railway Co., ante, p. 146.

ON EXCEPTIONS from the Circuit Court for Dane County.

In May, 1874, a complaint was entered in the municipal court of the city of Madison, charging the defendant with a misdemeanor in receiving, as agent of the Chicago, Milwaukee & St. Paul Railway Company at Madison, compensation for the carriage of a certain person on said company's road from Madison to Janesville, at a greater rate than that prescribed by the VOL. XLIII.-31

Clegg and others vs. Jones and others.

statute. Secs. 2 and 6, ch. 273 of 1874. Such proceedings were then had in the municipal court, that, in July following, defendant was found guilty of the offense charged, and fined $50; and he appealed to the circuit court. The cause coming on for trial in that court in November, 1877, a motion to dismiss the action and discharge the defendant was denied; he was found guilty; a motion in arrest of judgment was denied; and the cause was brought to this court on defendant's exceptions.

RYAN, C. J. The penalty and the prosecution went with the repeal of the statute. Rood v. Railway Co., ante, p. 146. All court below were therefore well taken; and the defendant is entitled to arrest of judgment on the verdict.

the exceptions in the

By the Court. Exceptions sustained.

CLEGG and others vs. JONES and others.

EQUITY: VERDICT: EXCLUSIVE Mining LeaSE. (1) Verdict in equity not conclusive. (2, 3) When evidence of exclusive right to mine land must be clear. (4) NEW TRIAL.

1. In an equitable action a verdict has not the same conclusive weight as in an action at law; and, on appeal from a judgment pursuant to such verdict, this court reviews the evidence.

2. One who claims an exclusive right to mine on a tract of land by virtue of an alleged parol lease, and seeks a perpetual injunction restraining others from mining thereon, though the latter do not interfere with his development of his own range, must establish such right by clear and satisfactory evidence; and the evidence in this case (for which see the opinion) is held insufficient.

3. Whether such a parol lease without expressed limit of time, if established by clear and unequivocal proof, would be valid under the statute of frauds, as a lease for one year, and whether it would be renewed from time to

Clegg and others vs. Jones and others.

time by payment of rent, not considered; but it seems that ch. 260 of 1860, amended by ch. 117 of 1872, does not affect the case.

4. No probability appearing that the evidence would be materially different on a new trial, this court, on reversing a judgment for the plaintiffs, directs a dismissal of the complaint.

APPEAL from the Circuit Court for Iowa County. Action for a perpetual injunction, restraining defendants from mining on a certain portion of a forty-acre tract of land. The relief was claimed in the complaint upon two grounds: 1. That plaintiffs had the exclusive right to mine upon said tract, under a parol lease from one Vivian, the agent of the owner, made June 24, 1873, under which they claim to have been in exclusive possession of the premises until disturbed in their possession by defendants in October, 1876. 2. That the place where defendants were mining was part of a valuable discovery, lode or range struck and discovered by plaintiffs in 1870. The latter claim, however, was abandoned on the trial. The answer, among other things, denied plaintiffs' exclusive right.

The evidence for the plaintiffs, and the exceptions taken by the defendants, will sufficiently appear from the opinion. The judge submitted to the jury the following questions: "What were the terms of the lease between Vivian and the plaintiffs, if any? Was it a lease of all the minerals contained in a certain piece of land, as claimed by the plaintiffs?" The jury answered the second question affirmatively. The court afterwards found the facts substantially as alleged in that part of the complaint which was not abandoned, and rendered judgment for the relief demanded; from which the defendants appealed.

There was a brief for the appellants, signed by Wm. E. Carter, with Reese & Carter, and oral argument by Wm. E. Carter. They contended, 1. That there was no sufficient evidence of the alleged lease or exclusive right. 2. That there was no consideration to support the alleged lease; plaintiffs,