BERNARD McCAFFREY, Plaintiff in Error, vs. JAMES NOLAN, Defendant in Error, 1 Wis. 361

JBy the Court, Whitoít, C. J. In the consideration of this case, we have looked at only one of the errors assigned; and that is, that a writ of certiorari will not lie to reverse a judgment rendered by a justice of the peace, in an action of replevin, when the value of the property replevied, as found by the justice, exceeds fifteen dollars. This court held, in the case of * * vs. * * decided at the * * term, A. D. such to be the proper construction of our statute upon the subject, and we see no reason to doubt the • correctness of the conclusion to which the court arrived.

Our statute, chap. 88, sec. 213, 226, provides, that “ any party to a final judgment, rendered by a justice 0£ peace, when the recovery shall exceed fifteen dollars, except judgment of non-suit, exclusive of coste ” may appeal, &c.; and that, “ if any person shall conceive himself to he injured by error in any process, proceedings, judgment or order, given by any justice of the peace within this State, it shall be lawful for such person, when the judgment shall not exceed fifteen dollars, to remove such judgment to the County Court ” by a writ of certiorari, <&c.

In this case, it is contended by the plaintiff in error, that the judgment really recovered before the justice was for seventeen dollars and fifty cents, because the value of the property as found by the justice, and damages for its detention, amount to that sum, although there was only a judgment for the fifty cents. Our statute (Rev. Stat, chap. 88, § 150, 151) makes it the duty of the justice, when the property has been replevied and is in the hands of the officer at the time of the trial, to enter an order in his docket, that the officer deliver the property to the party prevailing in the suit.

We think that it was the intention of the legislature to give to the party dissatisfied with the judgment, the right to appeal in all cases, when the effect of the proceedings before the justice is to give to the prevailing party the possession of property of a value exceeding fifteen dollars, although the order by which he gets the possession is not technically in the form of a j udgment. In this case, the justice entered an order in his docket, directing the officer to deliver the property in dispute to the plaintiff.

The value of the property exceeded fifteen dollars, and this property had been taken from the possession of the defendant by the officer when he served the writ. The result of the suit was to take from the defendant this property, and give it to the plaintiff. In such cases, or when the value of the property and the damages together exceed the sum of fifteen dollars, an appeal, and not a certiorari, is the proper remedy.

If the goods have not been replevied by the officer, it is the duty of the justice to render a judgment in favor of the plaintiff, in addition to the judgment for damages and costs, that the goods and chattels be replevied and delivered to him without delay; and in default thereof, that the plaintiff recover from the defendant the value of the goods and chattels. R. S., chap. 88, § 154.

In such a case, there would, technically, be a judgment for a sum exceeding fifteen dollars (when the value of the goods was sufficient) upon the same state of facts as exists before us, except, merely, that the sheriff would not have replevied the goods ; and there can be no doubt that an appeal and not a certiorari would lie ; and it appears to us in this case, that, although the form of the judgment is wanting, we shall but carry out the intention of the legislature, by holding that, as the plaintiff recovered the possession of the property, exceeding in value the sum of fifteen dollars, an appeal was the proper mode by which to take the case to the County Court.

It follows that the County Court did not obtain jurisdiction of the case by the writ of certiorari, and consequently had no power to render a judgment. Jordan vs. Dennis, 7 Met. R., 590. The judgment of the County Court must therefore be reversed.