As seen by the statement, sec. 3754, Stats. (1898), relating to appeals from justices’ courts, governs appeals from the municipal court in question, except as such section is departed from by the law creating the latter.

See. 3754 provides that for a person to appeal from a *454judgment in justice’s court be must present specified papers “to tbe justice before wbom the action was tried, or bis sue-, cessor in office, or any other justice then lawfully having custody of the docket containing such judgment,” and at the same time pay him “his fees in the action, together with one dollar for his return and one dollar for state tax and two dollars for clerk’s fees for the clerk of the court appealed to. . . .”

It seems plain that the quoted language contemplates, in every case of an appeal from justice’s court, that the appeal papers shall be presented to the justice having possession of the docket containing the record of the judgment and the papers in the case and so capable of transmitting such papers and a copy of such docket to the appellate court.

The municipal court act, unlike the law relating to justices’ courts, does not contemplate, in case of the municipal judge being incompetent to hear a case brought in or removed to his court, that such case shall necessarily be sent to some other judicial officer for trial, new docket entries be made, and such officer possess the record of the case and the papers. The purport of such act is that for all purposes, except that of the trial and proceedings in the case of a discretionary nature connected therewith, which the municipal judge is incompetent to perform or participate in, he is to retain absolute control of the record and papers therein. Upon his calling in another officer for the trial or some judicial proceedings requiring discretion in respect thereto, such officer is clothed with the power of the judge of the court in the case for that purpose. Upon the trial being concluded and judgment perfected, the records and papers, necessarily, remain under the control of the municipal judge.

It follows, as it seems, that in case of an appeal the papers in that regard must be presented to the municipal judge as custodian of the record. His incapacity to act as judge in the case does not militate against his receiving such papers *455and transmitting them to the appellate court, since such acts are purely of a clerical and ministerial character. So on this branch of the case the order dismissing the appeal cannot be sustained.

The language of the statute relating to payment of justice’s fees at the time of taking an appeal does not exactly fit the situation presented in case of an appeal from a judgment rendered in the municipal court by a person called in to preside, as in the instance before us. It seems that the municipal court act does not contemplate in a case of this sort any judge’s fee bill. A sum in gross of $10 is allowed. That is evidently to cover all ministerial acts done by the municipal judge, such as filing the papers on the appeal to his court, and making the necessary docket entries up to and inclusive of the entry of the order calling in another officer to take charge of the case. It does not seem that the ten-dollar fee, necessarily, all goes to the one called in. Such part as appertains to mere ministerial service, which the municipal judge in any event must perform, probably belongs to him, and such part belongs to the officer called in to take charge of the case as is incident to the duties performed by him. How the division is to be made is not pointed out in the law, and we need not deal with the matter at this time. Probably, primarily, the law leaves the matter of making the division to the municipal judge and the one called in. But let that be as it may, it seems clear that the ten-dollar court fee stands for the justice’s fees required to be paid under sec. 3154, Stats. (1898), and that a substantial portion thereof goes to the trial officer.

It is contended that since the court fee did not belong wholly to the municipal judge it was not competent for him to make a return on the appeal in advance of payment thereof, as was held might be done in case of an appeal from justice’s court in Golling v. Harder, 14 Wis. 86. It was there- de^ cided that neither payment of the justice’s fees nor payment *456of the state tax at the time of appealing from a justice court judgment is essential to the jurisdiction of the appellate court Such holding is based on sec. 3763, Stats. (1898), providing that “no justice shall be bound to make a return unless his fees, the state tax and the two dollars clerk’s fees be paid as prescribed by sec. 3754 at the time of tbe service of the notice of appeal.” It was said in effect that such language contemplates that jurisdiction of the appellate court wiE attach upon a return being made thereto regardless of the payment of fees; that if the justice waives his fees the adverse party on the appeal has no reason to complain, since the justice may do what he likes with' his own, and if he fails to perform his duty as to collecting fees belonging to others he makes himself liable, and that in any event such adverse party is not injured and so has no reason to complain. We do not perceive why that does not rule this case in favor of the appellant.

By the Court. — The order appealed from is reversed, and the cause remanded for further proceedings according to law.