#### Taylor vs. Wilkinson.

Justice’s *Couet*— Ceetioeaei.—Loss *of jurisdiction by defective entry of adjournment*— Effect *of failure to require security for costs.*— Peaotice in *Ceetioeaei*— Effect *of errors not specifically assigned.*

1. A justice’s court *held*not to Have lost jurisdiction of a cause by virtue of a docket entry that it was adjourned to a certain day “ át ten o’clock A. P.,” instead of “A. M.” If the hour had been specified merely as “ten o’clock,” this would he held to mean.ten o’clock A. M. ’

2. A justice’s judgment will not he reversed on *certiorari*because there is no docket entry showing security for costs filed,'although an order appeared requiring it to be filed. A neglect to require such security is not a jurisdictional defect.

3. *Quiere*(1.) Whether the last named objection could be taken in this court on appeal, if not made at the circuit. (2.) Whether it could be taken under a general clause in the petition for the writ, alleging “other errors and irregularities.”

APPEAL from the Circuit Court for *Sauk*County.

*Wilkinson*brought suit against *Taylor*in a justice's court in said county, and recovered a judgment for $80; and *Taylor*sued out a *certiorari*to the circuit court, alleging that after issue joined the cause was adjourned on his motion to the 11th of October; that the entry of’ adjournment in the docket was, “ On motion of defendant, cause adjourned until October 11th, 1866, at 10 o’clock A. P., at my office,” *41etc.; tbat said defendant did not appear on tbat day, because be did not know to wbat part of tbe day tbe cause was adjourned; and tbat on tbe day of tbe adjournment tbe justice altered said docket so as to make it read “ 10 o’clock A. M.,” etc. Tbe errors specifically assigned are, tbat there was no definite bour of tbe day mentioned in tbe entry of adjournment, and tbat tbe justice bad no right to alter said entry; and there is added tbe general assignment of “ further errors, irregularities and informalities apparent on tbe face of said proceedings.” Tbe certificate of tbe justice accompanying bis return sustained tbe allegations of tbe plaintiff in error as to tbe original docket entry of tbe time of adjournment, and tbe change subsequently made; but stated tbat be actually adjourned the cause to 10 o’clock A. M. of tbe day mentioned, and so announced orally at tbe time. It appeared also from tbe return, tbat an order was entered on tbe docket, before the adjournment, requiring *Wilkinson*to file security for tbe costs on or before tbe day to which tbe cause was adjourned; but it did not appear either tbat *Wilkinson*was a non-resident, or tbat be actually filed such security.

Tbe circuit court affirmed tbe judgment of tbe justice; and *Taylor*appealed.

*W. H. Clark,*for appellant,

to tbe point tbat tbe justice lost jurisdiction by reason of tbe defective entry, cited *Roberts v. Warren,*3 Wis., 736; *Brown v. Kellogg,*17 id., 476. To tbe point tbat be had no authority to change tbe entry subsequently, be cited *Mahr v. Young,*13 Wis., 636. 3. Tbe plaintiff below having failed to furnish security for costs, tbe case should have been dismissed. R. S., chap. 120, sec. 12. Tbe statute is not directory merely, but mandátory; and tbe rendering of tbe judgment was an error, for which it will be reversed. *Conrad v. Cole,*15 Wis., 546; *Combs v. Dunlap,*19 id., 591-3; 1 Scam., 152; 1 Hill, 512, 130; 17 Wend., 517.

*42
      *N. W. Wheeler*and *G. G. Remington,*for respondent,

contended that tbe provision of statute in reference to tbe justice’s entry of tbe time and place of adjournment is merely directory, citing *Hall v. Tuttle,*6 Hill, 39; *Sibley v. Howard,*3 Denio, 72; *Walrod■ v. Shuler,*2 N. Y.,*134; Warner v. Hart, 6*Wis., 464; *Bacon v. Bassett, 19*id., 45. 2. That in any event, tbe justice rightfully amended tbe docket. *Bacon v. Bassett, supra.*3. That tbe adjournment to a certain *day*at 10 o’clock, would in law, be an adjournment to 10 o’clock in tbe day time.

PAINE, J.

We tbink it would be carrying tbe doctrine of *Roberts v. Warren,*3 Wis., 736, and *Brown v. Kellogg,*17 id., 476, one step too far, to bold tbat tbe justice lost jurisdiction by tbe clerical mistake of writing tbe letter P instead of M. We bold so upon tbe ground tbat if tbe A. P. were stricken out entirely, tbe time of tbe adjournment is designated witb sufficient certainty. It would tlien bave stood: “ Cause adjourned until October 11, 1866, at 10 o’clock,” etc. Tbis should be construed at 10 o’clock in tbe day time, and not 10 o’clock at night, an hour which every body knows is never designated as tbe time at which to commence tbe trial •of a suit.

Nor should the judgment of the justice be reversed because there is no entry on the docket showing tbat security for costs was filed, although an order appeared tbat it should be filed. There is nothing in the record to show tbat the plaintiff was a non-resident; but even if be was, the neglect to require security for costs is not jurisdictional. *Conrad v. Cole,*15 Wis., 546. And a common law *certiorari*will only reach jurisdictional defects, such as arise either from an entire want of jurisdiction, or an excess of jurisdiction. *Stokes v. Knarr,*11 Wis., 389. Here there was no want of jurisdiction, and no excess of jurisdiction; and consequently the objection cannot be reached by tbis writ.

*43It is very doubtful, also, whether, this question ought to he considered in this court, as it is not specifically assigned as error in the plaintiff’s petition; and it was stated by counsel that no such question was raised in the circuit court. It is true that the petition, after specially assigning several errors, contains the general clause usual at the end of all assignments, that there were other errors; irregularities' etc. But it has been held, in some cases, that this would be insufficient to enable the party to make any substantial objection not specifically assigned as error. Certainly it would seem that such new question ought not to be raised for the first time in the appellate court.

But, as in this case we are satisfied .that the objection is not such a one as could be reached by common law *certiorari,*we shall not pass upon the question of practice.

*By the Court.*— The judgment of the circuit court is affirmed, with costs.