#### Holz, Respondent, vs. Rediske, Appellant.

*October 22*—

November *17, 1903.*

*Justices’ courts: Lost jurisdiction: Subsequent voluntary appearance: Appeal: Questions considered.*

1. A justice lost jurisdiction, by an unauthorized adjournment. On the adjourned day defendant, who had heen subpoenaed as a witness, failed to appear, and was arrested and brought into court by attachment. After showing these facts, the justice’s docket states that defendant “now appears and asks that this cause be continued until,” etc.; that the motion was granted; and that “by consent of the parties” the action, was adjourned accordingly. *Held,*that defendant’s appearance was voluntary, and the justice thereby regained jurisdiction.

2. An objection to the jurisdiction of a justice, not alleged in the petition to the circuit court for a writ of *certiorari,*but urged for the first time on appeal from the circuit court to this court, will not be considered.

Appeal from a judgment of tlie circuit court for Milwaukee county: Laweekce *W.*Halsey, Circuit Judge.

*Reversed.*

This is an action of *certiorari*brought to reverse the judgment of a justice of the peace. Return to the writ was made by the justice, and it appeared therefrom that *Rediske*sued *Holz*in a tort action before the justice, and obtained an order of arrest September 25, 1900; that *Holz*was arrested, and appeared in court September 29, 1900, when issue was joined in the action and the same was adjourned until October 6, 1900, *Holz*giying his own recognizance to appear in court *September*6, 1900, and “answer to a criminal prosecution for . . . .” On October 6th the parties appeared, a jury trial was demanded by *Holz,*the jury selected, venire issued, and the ease adjourned by consent to October 12th. A like adjournment was had on the 12th to the 19th, and on the 19th to the 26th of October. On the 26th of October both parties appeared personally, and *Rediske*asked for an ad-*564joumment because Ms lawyer could not be present, which motion was granted and tbe case adjourned to tbe 2d day of November. November 1st a subpoena was issued at tbe request of *Bedislce*for *Holz,*returnable on tbe following day. November 2d *Rediske*appeared, but *Holz*did not. Proof was made of due service of tbe subpoena on *Holz,*and that be was a material witness and refused to attend, and an attachment was issued to tbe constable for bis arrest. Tbe attachment was returned by tbe officer, bis return stating that be bad arrested *Holz*and had him now in custody in court. Tbe docket then proceeds as follows:

“Plaintiff is ready for trial. Tbe defendant, *Frederick Holz,*now appears in person, and asks that this cause be continued until tbe 8th day of November, 1900, at 2 o’clock p. m. of that day. Motion granted, and by consent of tbe parties this action is adjourned until tbe 8th day of November, 1900, at 2 o’clock in tbe afternoon, at this, my office.”

November 8, 1900, tbe case was called, and *Holz*did not appear, whereupon tbe court proceeded to try the case without a jury, and rendered judgment for tbe plaintiff for damages and costs. Upon tbe record tbe circuit court reversed tbe judgment of the justice, and *Rediske*appeals.

For tbe appellant there was a brief by *Doerfler, McFlroy & Esclnoeiler,*and oral argument by *F. G. Fschweiler.*

*J. E. Wildish,*for tbe respondent.

Winslow, J.

Tbe sole question is whether tbe record of tbe justice shows that tbe judgment of tbe justice was rendered without jurisdiction. That be lost jurisdiction by tbe adjournment of October 26th is *res adjudicaba*as between these parties. *Holz v. Rediske,*116 Wis. 353, 92 N. W. 1105. Tbe question is whether tbe docket shows that jurisdiction was regained by tbe appearance of *Holz*on tbe 2d of November. If this appearance was voluntary, jurisdiction was regained; if involuntary, it was not regained. *Brosde*
      *565
      *v.*Sanderson, 86 Wis. 368, 57 N. W. 49. *Holz*bad given no bond for bis appearance on tbe last-named day, bence tbe principle laid down in tbe last-named case does not apply; bnt it is claimed that, because be bad been arrested and brought into court by attachment, bis subsequent appearance must be considered involuntary. If it appeared that bis entry into court under arrest was tbe sole fact upon which tbe entry of bis appearance was predicated, this position would doubtless be correct; but tbe justice’s docket, which must be taken as true, does not, in our judgment, show this fact. It is true that it shows that *Holz*was arrested and brought into court, but it then states that be appeared in tbe action and asked for a continuance, which was granted. There is nothing which shows -that either tbe appearance or motion for continuance was coerced. On tbe contrary, tbe only reasonable inference from the statements of the docket is that they were voluntary acts. Tbe fact that *Holz*was under arrest did not prevent him from voluntarily appearing if be chose to do so. It must therefore be held that tbe docket shows that jurisdiction was regained by tbe voluntary appearance.

It is said that jurisdiction was lost by reason of tbe failure to try tbe case by jury after demand bad been made for tbe jury trial, but, as this ground was not alleged in tbe petition for tbe writ and is urged for tbe first time in this court, it will not be considered.

*By the Court.*— Judgment reversed, and action remanded with directions to affirm tbe judgment of tbe justice.