The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1882-07-14
A Ia WSUIT.
A FIGHT FOR THE MILKY wAY-A POINT OF
LAW ExPLAINED-JT MUST BE THREE DAYS
AFTER.

To THE EDITOR:
On Friday afternoon last the usually quiet
course of events in the village of Bristol was
disturbed by the excitement Of lawsuit.
The occasion afforded the opportunity OF
raising and deciding point of law of such
importance that [ deem it of sufficient inter-
est to be placed before your readers
The contest in question was for the possess
sion of certain COW, the ownership to be
determined in an action of replevin before
Squire Jones, of Bristol. The summons to
the defendant was issued on July 5th and
was made returnable on the 7th, which was
last Friday. M. A. Baker, ESQ.,, of Keno
sha, who has made for himself a wide popu-
larity by his efficient services as district at
torney of Kenosha county, appeared for the
defendant. He made a special answer to the
summons, and took the position that the
court had no jurisdiction over the parties in
the case, or either of them, from the fact
that the defendant could not be lawfully
brought into court on that day; the sum-
mons being issued on the 5th and made re-
turnable ON the 7th of July, the second day
after its issuance. The statute of the state
commands that the summons be made return
able on the third day after it issues, Sundays
and legal holidays excepted. Mr.. Baker s
constituting of the law was very clear. He
said this summons was issued on the 9Th,
the first day after the 9Th must be the 9th,
the second day after must be the 7th, and
the third day after must be the 9th.
The summons must be made returnable
on the third day after it issues. and not on
the second nor on the fourth day after, I'M
less Sunday or legal holiday intervenes.
Mr.. Baker said the error which the court
had fallen into in this case was very COM
mon one, and he thought it safe to say that
every justice in Kenosha county, and pre-
sumably in the state, before whom an action
of replevin had been brought, had fallen into
the same error; in fact, it was the common
practice to make the summons returnable
within three days instead of on the third
| day after it issued.
| This point of law had been adjudicated on
| and decided by the Supreme Court of the
| State Of Wisconsin. In the case cited by
| Mr.. Baker in the Wisconsin reports it is
shown that, if an error be made in the day
on which the defendant is commanded to
appear in court, and the defendant raises
\ the objection to the error; still if he joins
issue and proceeds with the trial he virtually
valves the objection and all further proceed
ings are valid. Therefore in case of this
error if the justice does not sustain the OBJ
lection and enter non.suit it is necessary
chat the defendant withdraw entirely from
the court to make the objection valid and
vitiate all future proceedings in the case.
Justice Jones was convinced by the able
presentation of this point of law by the ex-
district attorney and entered judgment OF
costs and damages against the plaintiff.
| Of course this decision in no way affects
the rights of either party in the case before
Squire Jones; nevertheless, in consequence
of this error, the plaintiff in the case was
mulcted in the sum of eleven dollars costs
and damages.
The most peaeeable men are sometimes
obliged to maintain their rights by an appeal
to law and q knowledge Of the point of law
as raised in this case may save much need.
less trouble and expense. RaF R.
Woodwork, July 10.