#### SILAS CALKINS, Plaintiff in Error, *vs.*JOHN C. HAYS, Defendant in Error.

ERROR TO FOND DU LAO CIRCUIT COURT.

.A writ of error lies to reverse a void judgment, and costs will be awarded, thereon-

A writ of certiorari issued from the Pond du Lac Circuit Court, to one D. C. Jones, a justice of the peace of said county,, in a certain case before bim, wherein John C. Hays was plaintiff, and Silas-Calkins was defendant.

The return of the justice to the writ of certiorari, shows that the suit was commenced by summons, of which the following is a copy:

“ John 0. Hays against Silas Calkins; William Morrel, constable.

“ You are hereby commanded to summon Silas Calkins, to appear before the undersigned, one of the justices of the peace in said county, at my office in said town, on the 30th day of September, A. Hi 1854, at 4 o’clock in the afternoon of said day, there and then to answer unto John C. Hays, complainant and plaintiff, and show cause why a writ of ejectment to dispossess Silas Calkins of house and lot No. 35 or 36,. the amount of damage one hundred dollars, or return said property, &c.

“ William Morrel served the within precept by reading the summons to the within named defendant, and leaving a copy of the same by his request on the same day of service.

“Plaintiff appeared, and the court was called at four o’clock and fifty-three minutes, and the defendant did not appear.

“ John C. Hays declares, for rent of Silas Calkins, for. the use of a house that Silas Calkins is living in, for rent from the 20th of August, 1854, to 20th September, 1854. Charles W. White testifies and says that the rent of the house and lots Silas Cal-kins occupies, is worth four dollars per month.

“ Albert North, sworn: testifies and says, that he saw Morgan L. Martin execute a deed to John G. Hays, for the lots of land *201and house where Silas Calkins lives, about the 30th of August, 1854.

“ Judgment rendered against defendant for four dollars damage, and costs of suit.

“The judgment was certiorari on.the 15th of October, 1854, out of time for the same.

“ Notice to present this docket before the County Court on the first day of November next, was given on the 27th day of October, 1854.

“ I do hereby certify and say this is’ a true docket of my judgment.

“Judgment rendered against.the defendant for four dollars damage and costs of suit.

“ D. C. Jones, *Justice of the Peace.”*

The court below reversed the judgment of the justice, but denied costs to the plaintiff in error.

*B. P. Baton,*for the plaintiff in error.

*J. M. Giliett,*for the defendant in error.

*By the Court,*

Smith, J.

In this case, the justice, as is apparent, was wholly uninformed in regard to his duties and jurisdiction. Whether he imagined that he had jurisdiction of actions of ejectment, or whether it was intended to bring before the justice an action of forcible entry or detainer, it is impossible to ascertain. In either case his proceedings were all wrong, and the Circuit Court did right in reversing the judgment of the justice. The judgment of the justice was wholly void. The only question is, whether costs ought to have been awarded to the plaintiff in error. A writ of error lies to reverse a void judgment. *See Lewis vs. Sercombe,*1 *Wis. Rep.*394, and the cases there cited.

The judgment of the court below is reversed so far as costs were denied, and affirmed as to the residue.