Cannon Printing Co. v. Globe & Rutgers Fire Ins. Co.

• Citation: 195 Wis. 1,216 N.W. 498
• Parties: CANNON PRINTING CO. v. GLOBE & RUTGERS FIRE INS. CO.
• Decision Date: 06 December 1927
• Court: United States State Supreme Court of Wisconsin

195 Wis. 1

216 N.W. 498

CANNON PRINTING CO.

v.GLOBE & RUTGERS FIRE INS. CO.

Supreme Court of Wisconsin.

Dec. 6, 1927.

Appeal from a judgment in defendant's favor, of the Circuit Court for Milwaukee County; Hon. Otto H. Breidenbach, Judge.

Action by the Cannon Printing Company against the Globe & Rutgers Fire Insurance Company in Civil Court of Milwaukee County. Judgment for plaintiff, and defendant appealed to the Circuit Court of Milwaukee County where it had judgment. From this judgment plaintiff appeals. Reversed with directions.--[By Editorial Staff.]Churchill, Bennett & Churchill, of Milwaukee (Richard R. Davis, of Milwaukee, of counsel), for appellant.

Thomas H. Gill and Peter J. Hayes, both of Milwaukee, for respondent.

DOERFLER, J.

This action was originally brought in the civil court for Milwaukee county against the defendant, to recover damages to an automobile owned by the plaintiff, upon the ground that the automobile, which was stored in a certain garage, had been fraudulently converted, by an employee of the garage keeper, to his own use and to the use of the keeper. It is also charged in the complaint that the defendant insurance company insured the risk. Upon the trial in the civil court, judgment was rendered in plaintiff's favor, on the 8th day of February, 1926.

[1][2] On February 10, 1926, the defendant filed notice of appeal to the circuit court for Milwaukee county, and an affidavit of good faith. The appeal and folio costs were not paid until May 17, 1926. When the appeal came on for a hearing in the circuit court, the plaintiff entered a special appearance and objected to the jurisdiction of the court, for the reason that the costs and folio charges had not been paid within the time provided for by law.

Section 23 of chapter 320 of the Laws of 1913, p. 347, providing for appeals from the civil court to the circuit court of Milwaukee county, among other things provides as follows:

“Provided, that if the fees on appeal, including an amount sufficient to pay for fifty per cent. of the folios contained in the return, as estimated by the clerk upon request of the appellant, be not paid within twenty days from the date of the entry of judgment, the appeal shall be deemed dismissed.”

It is conceded that such costs and folio fees were not paid within the 20 days provided for by law, the defendant claiming that such provision is merely directory, the plaintiff claiming that it is mandatory.

The circuit court on December 13, 1910, which was about three years prior to the enactment of section 23, chapter 320, Laws of 1913, p. 347, adopted certain rules for the speedy hearing of cases appealed from the civil court, and among such rules the following will be found:

“Conforming to the intention of the law that appeals from the civil court to the circuit court should be speedily heard and determined, the following rules are adopted:

A. Motions and applications for hearing appeals from the civil court shall be made returnable before the calendar judge, whose duty it shall be to forthwith assign said cases for hearing.

B. Such cases shall have preference...