#### Sellers, Respondent, vs. Lampman, Appellant.

*April 10*

*April 28, 1885.*

*Justices' courts*— Appeal—Trial de *novo*— Jurisdiction—Amount *involved.*

1. The minutes of a justice of the peace cannot be referred to, in a case triable *de novo*on aiipeal, to ascertain whether the amount in controversy exceeded his jurisdiction. That fact should appear by certificate of the justice.

3. Where upon appeal from a justice the pleadings are amended so as to admit evidence of an account or claim exceeding the justice’s jurisdiction, proof of such an account or claim on the new trial will not show that the justice did not have jurisdiction when the cause was before him.

*257APPEAL from the Circuit Court for *Portage*County.

This action was commenced before a justice of tbe peace. Tbe complaint is for a balance of account for goods sold, for labor and services, and for moneys bad and received, paid, laid out, and expended. Judgment is demanded for $200. No dates or specific amounts are given. Tbe answer is a general denial, payment, and settlement in 1870, showing a balance due tbe defendant of $6.75. Tbe answer also contains a counterclaim for goods sold and delivered, for work and labor, and board, to tbe amount of $400, and a demand of judgment for $200. No items of account were filed by either party. A trial was had, which resulted in a verdict and judgment for tbe plaintiff for $121.44 damages, and for costs. Tbe defendant appealed to tbe circuit court. Tbe cause was tried in that court before a referee, who found a balance due tbe plaintiff of $146.40, and on' motion tbe report was confirmed, and judgment rendered for tbe plaintiff for that sum. From that judgment tbe defendant has appealed to this court..

Eor tbe appellant there was a brief by *Raymond <& Saseltine,*and oral argument by *Mr. Haseltme.*

For tbe respondent tbe cause was submitted on tbe brief of *G. W. Gate.*

LyoN, J.

Tbe only reason assigned for a reversal of the judgment of tbe circuit court is that tbe justice bad no jurisdiction of tbe action, because- tbe amount of tbe plaintiff’s account exceeded $500, and because tbe amount due tbe plaintiff, at tbe time of tbe trial before tbe justice, exceeded $200. E. S. sec. 3572, subd. 4. These sums are, respectively, tbe maximum limits of a justice’s jurisdiction. Tbe statute confers such jurisdiction in “ actions founded on any account, when the amount of tbe plaintiff’s account, proven to tbe satisfaction of tbe justice, shall not exceed five hundred dollars, and when tbe same shall be reduced *258to an amount not exceeding two hundred dollars, by credits given, or by the setoff or demand of the opposite party.” .It was contended on the argument that the testimony taken before the justice, and returned by him to the circuit court, showed that the plaintiff’s account in suit amounted to more than $500, and that the balance due thereon exceeded $200. We do not think that we can properly refer to the justice’s minutes of testimony, returned on an appeal, for the purpose of ascertaining the fact, in a case triable *de novo*in the circuit court on appeal. This is such a case. In a case not so triable, as a matter of course it must be determined upon the testimony returned by the justice. But, in an action so triable, the justice should be required to certify what amount was proved on the trial to his satisfaction, and the amount it was reduced by credits given, or by the set-off or demand of the defendant. Certainly, the complaint in this case does not show any want of jurisdiction, and the justice has made no such certificate. On the contrary, at the close of the testimony the defendant moved to dismiss the cause, for the reason, as we understand, that the plaintiff’s account, or the balance due thereon, proved on the trial, exceeded the jurisdiction of the justice. This motion was overruled. The fair inference therefrom is that the amount of the plaintiff’s account, proved to the satisfaction of the justice, did not exceed $500, and that it was reduced, as specified in the statute, to a sum not exceeding $200. We find nothing in the return of the justice showing a want of jurisdiction in him to try and determine the case.

Was anything disclosed on the trial before the referee which showed such want of jurisdiction? We think not. It has already been stated that the pleadings'consisted of the common counts alone. In the circuit court each party was allowed to amend so as to claim damages to the amount of $1,000. Under the amended pleadings it was undoubtedly competent for either party to give evidence of an ac*259count far in excess of a justice’s jurisdiction. Did this record show that the plaintiffs proved an account in excess of $500, or a balance due Mm exceeding $200, it would still fail to show that any such proof was made on the trial before the justice. In this respect the case is unlike the cases of *Nimmick v.*Mathiesson, 32 Wis. 324; *Cooban v. Bryant,*36 Wis. 605; *Henckel v. W. & W. Manuf'.g Co.*51 Wis. 363. In each of these cases the want of jurisdiction appeared, either in the record proper or by the proofs in the appellate court on the same pleadings interposed before the. justice.

But it does not appear in this case, that-the plaintiff proved an account or a balance due him in excess of a justice’s jurisdiction. The referee stated an account showing that the plaintiff’s account proved before him amounted to only $215.10, and that of the defendant to $128.70. The balance is the amount of the judgment recovered by the plaintiff in the circuit court. Hence, if resort could be had to the trial in the circuit court (or, what is the same thing, to the trial before the referee), the only inference that could be drawn therefrom would be that the plaintiff’s account proved before the justice was far less than $500,. and the balance due him was far less than $200.,

In any view we are able to take of the case, we think the record fails to show any want of jurisdiction in the justice; Many cases in tMs court are cited in the briefs of counsel, but none of them are in conflict with the views here expressed. It would be profitless to attempt a review of them.

*By the*Gourt.— The judgment of the circuit court is affirmed.