#### Berger, Respondent, vs. Discher and another, Appellants.

*April 6*—

May *2, 1911.*

*Qivil court of Milwaukee county: Jurisdiction: Amount involved: Forcible entry and detainer: Appeal to circuit court.*

1. In sec. 6, ch. 549, Laws of 1909, giving to the civil court of Milwaukee county jurisdiction of the actions and proceedings enumerated in see. 3572, Stats. (1898), when the amount claimed or involved does not exceed $1,000, such limitation as to amount is not applicable to actions for forcible entry and detainer mentioned in subd. 9, sec. 3572, since in such actions no definite amount is involved or. can be claimed.

2. Upon an appeal to the circuit court from a judgment of the civil court of Milwaukee county in an action for forcible entry and detainer, the procedure is governed by sec. 28, ch. 549, Laws of 1909, and not by sec. 3370, Stats. (1898), relating to appeals from justices’ courts; and hence a trial *de novo*is not required.

Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.

*Affirmed.*

On May 24, 1910, plaintiff brought an action of forcible entry and unlawful detainer in the civil court of Milwaukee county. The defendants answered setting forth that the premises in dispute were held by them under a written lease from the plaintiff expiring April 30,- 1910, and that before said lease expired the parties entered into an agreement whereby the term of the lease was extended until July 1,1910. The issues were submitted to a jury and a verdict returned in favor of the plaintiff, upon which judgment was subsequently entered. Thereupon the defendants appealed the action to the circuit court for Milwaukee county. Upon due notice plaintiff made a motion in that court for an order confirming the judgment of the civil court. The motion was granted and an order made reciting that the court was satisfied that no manifest prejudicial error was committed in the trial of said action in the civil court, and that both parties thereto had a fair trial in said court, and directing that judgment should be *171entered confirming tbe judgment of tbe civil court. Erom *ad-judgment*entered accordingly tbe defendants appealed.

Eor tbe appellants there was a brief by *Flanders, Bottum,. Fawsett ■& Bottum,*and oral argument by *J. G. Flanders.*

For tbe respondent there was a brief by *Austin, Fehr &■ GeJirz,*and oral argument by *G. G. Gehrz.*

ViNJE, J.

Tbe most important assignment of error is that tbe civil court bad no jurisdiction of an action of forcible entry and detainer. If this assignment is well founded it disposes of tbe whole case, for, if tbe lower court has no jurisdiction over tbe subject matter of tbe action, an appeal confers no jurisdiction upon the appellate court, and in such case its duty is to dismiss tbe action. *Felt v. Felt,*19 Wis. 193; *Klaise v. State,*27 Wis. 462; *Stoltman v. Lake,*124 Wis. 462, 102 N. W. 920; *Miltimore v. Hoffman,*125 Wis. 558, 104 N. W. 841.

Tbe civil court of Milwaukee county was established by cb. 549 of the Laws of 1909. Sec. 5 of that act, defining its jurisdiction, provides:

> “Tbe said civil court shall have jurisdiction and cognizance-of tbe actions and proceedings set forth and enumerated in section 3572 of the statutes, when the amount claimed or involved in such actions or proceedings does not exceed tbe sum-of one thousand dollars; and shall possess, except so far as may be inconsistent with tbe provisions of this act, tbe jurisdiction and powers over persons and subject matter heretofore possessed by justices of the peace in tbe city of Milwaukee immediately prior to tbe passage of this act, provided said court shall have jurisdiction of any action founded on an account when tbe same shall not exceed in amount, or shall have been reduced by payments to an amount not exceeding one thousand dollars; and shall have territorial jurisdiction co-extensive with tbe county of Milwaukee.” ■ .

It is also given jurisdiction of actions for libel, slander, malicious prosecution, or false imprisonment, and of actions-for or against any town within tbe county, where in each of *172tbe above classes of actions tbe amount claimed or involved does not exceed $1,000.

Upon reference to sec. 3572, Stats. (1898), it will be observed that it consists of twelve subdivisions, each of which, except subd. 9, contains a limitation as to amount. Subd. 9 reads: “Actions for forcible entry and detainer.” Defend■ant contends that tbe clause in sec. 5 of tbe civil court act, “when tbe amount claimed or involved in sucb actions or proceedings does not exceed tbe sum of one thousand dollars,” should be held to limit every subdivision of sec. 3572, Stats. (1898), so that subd. 9 would read as follows: “Actions for forcible entry and detainer — when tbe amount claimed or involved does not exceed tbe sum of one tb’ousand dollars;” and that, inasmuch as no amount involved or claimed appeared upon tbe record in this action, tbe civil court was without jurisdiction. We are unable to give that construction to the provisions of sec. 5 of tbe act. In our opinion tbe clear legislative intent was to give tbe civil court jurisdiction of every action or proceeding mentioned in each subdivision, except subd. 9, when tbe amount claimed or involved does not exceed $1,000, and to give it jurisdiction of actions for forcible entry and detainer regardless of tbe amount .involved or claimed. In other words, the clause as to limitation of amount does not limit subd. 9 of sec. 3572. This construction seems so clear and obvious as not to require argument or analysis to support it. It is sufficient to say that in 'actions for forcible entry and detainer there is no definite amount of money involved and hence none can be claimed. It would be absurd to provide a money limit where no money is sought to be recovered. Tbe damages sustained by reason of an unlawful detainer must be recovered in a separate action. Sec. 3367, Stats.! (1898). _ _ |

_ _ It is also urged that tbe circuit court bad no power to enter' judgment upon tbe appeal without a trial *de novo*as provided by sec. 3370, Stats. (1898). This raises tbe question *173of wbetber tbe provisions of tbe section of tbe statute mentioned, as to sneb cases appealed from tbe civil court, govern tbe procedure thereof in tbe appellate court, or wbetber it is-governed by tbe provisions of tbe civil court act. Sec. 28 of that act relates to appeals to tbe circuit court and provides as follows:

> “1. Except as herein provided, an appeal may be taken to-tbe circuit court of Milwaukee county by any party to an action or proceeding in said civil court from any final judgment-of said civil court or from any order of said civil court from which an appeal to tbe supreme court might be taken if such order were made by a circuit court. . . .

> “2. Upon such appeals tbe circuit court shall either affirm or reverse any judgment so appealed from, except that said circuit court may modify, and affirm as modified, any such judgment in all cases where tbe same might have been so modified, and affirmed as modified, if such appeál bad been taken to tbe supreme court from tbe judgment of tbe circuit court.

> “3. Every judgment of said civil court shall be affirmed or modified and affirmed as so modified, by tbe -circuit court, upon appeal, unless, by reason of manifest prejudicial error in the trial of tbe action in which such judgment was rendered, any party thereto has not bad a fair trial thereof in tbe civil court; but in any such case of mistrial, where substantial justice cannot otherwise Be done and tbe rights of tbe parties-otherwise observed and protected, tbe judgment of tbe civil court therein shall be reversed, and tbe circuit court shall order tbe action tried in said circuit court in tbe same manner as if originally brought there. . . .

> “4. At any time after tbe filing in tbe circuit court of tbe return upon any appeal from said civil court, any party to tbe action or proceeding in which such appeal is taken, upon notice given as required of other motions in tbe circuit court, may move that the judgment appealed from be affirmed, or reversed, or modified and affirmed as modified, or that tbe order appealed from be affirmed or reversed. . .

It will be perceived that under this scheme a new trial is bad in tbe circuit court only when that court is satisfied that. *174by reason of manifest prejudicial error in the trial in tbe civil court the parties did not have a fair trial, and that substantial .justice cannot otherwise be done and the rights of the parties otherwise observed and protected. The wisdom of this scheme becomes apparent upon a moment’s reflection. The purpose of establishing the civil court was to provide a reasonably adequate and competent tribunal in which cases of minor importance could receive a fair, and in most of them a final, trial, and so relieve the circuit court of the burden of trying such cases *de novo*upon appeal. It is a matter of common knowledge that trials in justices’ courts are usually mere matters of form, even when defendants appear therein, and it is •equally well known that in many cases the defendant does not ■even appear to defend, but prefers to see what case plaintiff makes by his evidence, and then takes an appeal to the circuit ■court. It was no doubt to stop this abuse, as well as to relieve the circuit court of the trial of the majority of cases of which the civil court has jurisdiction, that the act provided that only in cases where manifest prejudicial error had intervened, and substantial justice to the parties could not otherwise be done> a new trial should be had.

The court created is far higher in character and dignity than is a justice’s court. It has jurisdiction to the amount of $1,000, and can try actions for libel, slander, malicious prosecution, or false imprisonment, and actions for or against any town in the county where the amount claimed or involved does not exceed the jurisdictional limit of $1,000. The judge, in order to be qualified to hold the office, must have been a practicing attorney in the state for three years prior to his election. He is paid a salary of $3,000 per year, and is forbidden to practice law in any of the courts of the county while holding his office. Secs. 7, 13. The court has a clerk and seven deputy clerks. Sec. 11. It will thus.be seen that a tribunal has been created well qualified to try cases intrusted to its jurisdiction, and that appeals coming from the civil court to *175the circuit court may properly stand upon a different footing than appeals coming from a justice’s court. A careful reading of the language of sec. 28 of the act fails to disclose any exception thereto in cases of forcible entry and detainer, and we are of the opinion that none was intended. Such actions upon appeal are governed by the provisions of the civil court act and not by see. 3370, Stats. (1898), relating to appeals from justices’ courts. The circuit court therefore properly entertained the motion to affirm the judgment.

It is also urged by the defendant that the verdict of the jury in the civil court was contrary to the evidence and hence the judgment should have been reversed. The circuit court, by affirming the judgment, sustained the verdict. We find nothing in the record to warrant us in disturbing this ruling. On the contrary, we think the preponderance of the evidence supports the verdict.

*By the Court.*— Judgment affirmed.