#### Toledo Computing Scale Company, Respondent, vs. Polanis, Appellant.

*May 1*—

May *21, 1914.*

*Replevin: 'Nonsuit: Judgment not a bar to another action: Milwaukee civil court: Appeal: New trial.*

1. Where, in an action of replevin in the Milwaukee civil court, the-record shows that the issues were not tried upon evidence and that judgment of dismissal was awarded on the ground that plaintiff had not proven a cause of action, such judgment constituted a nonsuit and was not a bar to another action upon the same cause.

2. Under sub. 3, sec. 28, ch. 549, Laws of 1909, where a judgment of the Milwaukee civil court is reversed by the circuit court and a new trial ordered, such trial should be had in the circuit court.

Appeal from an order of the circuit court for Milwaukee county: W. J. TupNeb, Circuit Judge.

*Affirmed.*

The appeal is from an order reversing the judgment of the *313civil court of Milwaukee county and granting a new trial in a replevin action.

Tbe plaintiff commenced a replevin action on January 25, 1912, in tbe civil court of Milwaukee county to recover a scale from tbe defendant upon an affidavit for warrant of ■seizure, and warrant issued. Tbe scale in question was seized by tbe sheriff and beld subject to tbe order of tbe court. Wben tbe case was called tbe court sustained a demurrer to tbe affidavit of tbe plaintiff on tbe ground that it did not state wbetber tbe plaintiff was an individual, copartnership, or a corporation, and upon plaintiff’s motion it was granted leave to file -a new affidavit. Plaintiff filed a new and sufficient affidavit, and tbe defendant answered that tbe claim of tbe plaintiff bad been fully paid and- satisfied, and further that tbe company was not legally authorized to do business in this state. Tbe court thereupon ordered tbe company to furnish security for costs in tbe sum of $20, which was complied with and tbe case called for trial. Tbe parties announced that they were ready for trial. At this point tbe record shows no witnesses were sworn or any evidence offered by either party; nor is there any record of any evidence in that case returned with tbe record to tbe circuit court. Upon defendant’s motion tbe court, being sufficiently advised, ordered tbe complaint dismissed on tbe ground that tbe plaintiff bad not proven its case, and awarded judgment dismissing tbe action with costs, as follows: “It is adjudged that tbe complaint of tbe plaintiff be dismissed and that tbe defendant, *John Po-*lanis, recover of tbe plaintiff, tbe *Toledo Computing Scale*Companytbe costs of this action, taxed at $5 attorney fees.”

Upon February 8th tbe plaintiff in tbe above action began another replevin action against tbe defendant involving tbe identical property and issues as tbe former one. Wben this second case was called in tbe civil court of Milwaukee county tbe defendant demurred to tbe affidavit on the ground that tbe affidavit failed to allege that tbe plaintiff is a corporation *314•licensed to do business in tbe state of Wisconsin, which was overruled. The defendant then, by way of plea in bar, alleged that the identical issues and facts involved in this second action had been adjudicated in the former action. The •civil court sustained this plea and dismissed the action. The plaintiff appealed to the circuit court from the judgment of •the civil court sustaining the plea in bar, and the circuit •court reversed the judgment and directed that a new trial be had in the circuit court. In making this order the court ■said:

“The court is in doubt as to the proper order that should be made in this case. If the plaintiff had offered its proof on the trial, then there is no doubt but what a new trial should be had on the record. The plaintiff offered no proof, and the •defendant offered no proof excepting the record of the previous trial, so that the court is without evidence here upon which to determine the case on this appeal, and has concluded to reverse the judgment of the court helow and direct that the case stand for trial in the circuit court, new evidence to be taken, with costs of this appeal to the plaintiff.”

From this order the defendant appeals.

The cause was submitted for the appellant on the brief of *•Gasimir*Gonshi, and for the respondent on that of *Garroll & Gar roll.*

SiebeckeR, J.

The appellant contends that the circuit ■court erred in reversing the judgment of dismissal of the civil court. It is claimed that the record of the proceeding of the civil court in the first action shows that a trial was had and that the court found that plaintiff had “not proven its case and that the action should therefore be dismissed,” and awarded judgment accordingly. The record of the civil court omits to show that any witnesses were sworn or that any evidence was offered at the trial of the action by either party. This indicates that the parties submitted the case without producing any evidence. The court was proceeding within the *315law governing tbe jurisdiction of a court of a justice of the peace, and this requires that full minutes of all the evidence given at the trial of a cause shall be reduced to writing and be filed among the papers of the case. Ch. 549, Laws of 1909-; sec. 3638, Stats. This record of the civil court in the first action, therefore, shows that the issues were not tried upon evidence and that judgment of dismissal was awarded upon the ground that plaintiff had not proven á cause of action. Such judgment of dismissal constitutes a nonsuit, and, the propeeding being one in replevin, it devolved on the court to assess damages for the caption and detention of the property and to make an order for its return to the defendant and adjudge that he recover his damages and costs. Sec. 3743, Stats.; *Timp v. Dockham,*32 Wis. 146.

It has been repeatedly held that a judgment of nonsuit in an action is not a bar to another action upon the same cause. *Strehlau v. John Schroeder L. Co.*152 Wis. 589, 142 N. W. 120; *Kaley v. Van Ostrand,*134 Wis. 443, 114 N. W. 817. It necessarily follows that the circuit court properly held that the civil court in the instant case erred in dismissing the plaintiffs complaint upon the ground that the judgment in the first case was a bar to the prosecution of this action.

It is claimed that the circuit court improperly ordered a trial of the issues in the circuit court. This order is proper under Laws of 1909, ch. 549, sec. 28, suh. 3. *Pennsylvania C. & S. Co. v. Schmidt,*155 Wis. 242, 144 N. W. 283; *Hanna v. C., M. & St. P. R. Co.*156 Wis. 626, 146 N. W. 878.

*By the Court.*— The order appealed from is affirmed.