#### Griswold, Appellant, vs. Nichols, Respondent.

*September 5*

*September 24, 1901.*

*Justices' courts: Replevin: Sheriff a party: Service by coroner: Jurisdiction: Voluntary appearance.*

1. Under sec. 4972, Stats. 1898 (providing that if the provisions of different chapters conflict those of each chapter shall prevail as to all matters and questions growing out of the subject matter of such chapter), the provision of sec. 3787, in the chapter relating to replevin in justice’s court, that where the sheriff is a parfy the warrant and all process in the cause shall be awarded to and executed by a constable, must prevail over more general provisions in other chapters requiring the coroner to serve process and perform all the duties of sheriff when the latter is a party; and, the provision being mandatory, the justice acquires no jurisdiction in a replevin action from service of process by the coroner.

2. Issuance of the warrant to, and execution of it by, the coroner in such a case merely defeats the jurisdiction of the person; and the defect is waived by the voluntary appearance of the defendant.

Appeal from an order of the circuit court for Sauk county: R. G. Siebeokee, Circuit Judge.

*Reversed.*

Action of replevin in justice’s court .against the sheriff. The warrant was issued, delivered to, and executed by the coroner, who seized the property, and served upon the defendant. The latter appeared specially in the justice’s court, and moved to dismiss for want of jurisdiction, upon the over*345ruling of which motion he appeared generally, demanded security for costs, answered, and participated in the trial. From judgment in plaintiff’s favor defendant appealed to circuit court, where he renewed his motion to dismiss for want of jurisdiction, which was granted and order of dismissal entered, from which plaintiff áppeals.

The cause was submitted for the appellant on the brief of *Daniel Buggies,*and for the respondent on that of *F. B. Bentley.*

To the point that the 'justice was without jurisdiction, counsel for the respondent cited *Steen v.*Norton, 45 Wis. 412, 416, 417, 419; *Detroit S. Go. v. Kelly,*78 Wis. 134; *Sheridan v. Ireland,*66 Me. 138; *Martin v.*Darling, 78 Me. 78; *Bell v.*Olmsted, 18 Wis. 71; *Union M. F. Ins. Go. v. Page,*61 Mich. 72; *Basel v.*Moore, 57 Mich. 54; *Maguire v. Bolán,*94 Wis. 52; *Morrison v. False,*1 Pin. 133; *Slaughter v. Bev-oms,*1 Pin. 348; *Appeal of Boyston,*53 Wis. 612.

Dodge, J.

Two questions are presented upon this appeal: First. Can warrant in replevin in justice’s court be awarded to and executed by the coroner when the sheriff is a party? Second. If not, can defendant effectively waive objection thereto, and confer jurisdiction ?

1. Sec. 737, Stats. 1898, relating to "the' duties of county officers, provides that the “ coroner shall serve and execute process of every kind . . . when the sheriff shall be a party to the action.” Sec. 2826, in title XXY, “ Proceedings in Civil Actions in Courts of Becord,” provides that the coroner shall be bound to perform all services by that section imposed on the sh'eriff, as he is already bound to execute process when the sheriff is a party. Sec. 3737, in the chapter relating to replevin before justices of the peace, provides:

> “ Whenever such action shall be brought by or against the sheriff of any county the warrant and all process in the *346cause shall be awarded to ■ and executed by any constable of the county.”

Of these statutes We can have no doubt that the last must control the situation now before us, in deference to the provision of sec. *4972,*that, *“*If the provisions of different chapters of these statutes conflict with or contravene each other the provisions of each chapter shall prevail as to all matters and questions growing out of the subject matter of such chapter.” This statute but states a well-established rule of construction, long recognized by the courts. Under it, clearly, sec. *8787,*in the chapter relating to replevin in justice’s court, must prevail over the more general ones in that kind of action. *Cron v. Krones, 17*Wis. 401. That section is mandatory in form, not merely permissive. It commands that the process *shall*be awarded to and executed by a constable. That statute not being complied with in the present case, clearly the justice’s court acquired from its issue and service no jurisdiction of the case.

2. But it is contended that such want of jurisdiction was conferred by the voluntary act of defendant in appearing, answering, and demanding security for costs. Doubtless, such acts sufficed to waive the defect, if that was in the defendant’s power. *Lowe v. Stringham,*14 Wis. 222. That depends upon whether the irregularity in the form and service of the warrant defeats the jurisdiction of the justice over the subject matter, or merely over the person-of the defendant. It is well settled that the former class of defects cannot be cured, and may be availed of at any .time *(Detroit S. Co. v. Kelly,*78 Wis. 134); while the lattfer — those which go only to jurisdiction over the person — are subject to waiver by the party *(Bell v. Olmsted,*18 Wis. 69; *Gilbert-Arnold L. Co. v. O'Hare,*93 Wis. 194).

Respondent cites to us numerous cases in Wisconsin in which the jurisdiction, especially of justices of the peace in actions proceeding substantially *in rem,*such as attachment, *347garnishment, and replevin, has been held not aroused by reason of failure to comply with certain statutory prerequisites. *Steen v.*Norton, 45 Wis. 412; *Detroit S. Co. v. Kelly, supra.*An examination of these cases discloses that the failure to comply with statutory requirements in each case was in the affidavit required to be filed before process issued, and such failure, at least in inferior courts, was held to defeat jurisdiction over the subject matter and be incapable of waiver or cure. It is argued that the issue and due execution of prescribed process is just as obviously a statutory condition of the magistrate’s jurisdiction over the subject matter, and, some authorities from text-books and other states are cited to this proposition, which certainly is'supported by much reason; but we find the other view quite firmly established by earlier decisions of this court. Thus, in *Lowe v. Stringham, supra,*which was replevin before a justice, the warrant failed to comply-with the statutory requirement as to the length of time before it was returnable, but it was held that the defect was cured by the conduct of the defendant in entering his appearance, pleading, and going to trial; thus, while the distinction was not drawn in words, holding by the clearest implication that the defect affected only the jurisdiction over the person. Again, in *Krueger v. Pierce, 37 Wis.*269, also replevin in justice’s court, where the goods Avere in the custody of a deputy sheriff, the warrant Avas issued.to and executed by the sheriff. This was held to conflict with the statute, but to be cured by voluntary appearance of the defendant. The court says, “ At most, the service by the sheriff upon the deputy was only an irregularity which might be Avaived, and Avhich we think Avas fully waived, by the defendant. The defect in the service is not a matter which went to the jurisdiction of the court over the cause of action, but only to its jurisdiction over the person.”

In the light of so direct authority, standing for so many *348years without criticism, we cannot feel justified in departing from the construction and force then ascribed by this court to the statute under consideration. In deference thereto, we must hold that the erroneous issue and execution of the warrant in this case could be and was cured by the voluntary acts of the defendant, and the lacking jurisdiction over his person thereby conferred. The action should not have been dismissed.

*By the*Court.— The order appealed from is reversed, and the cause remanded for further proceedings according to law.