Bd. of Sup'rs of Milwaukee v. Pabst

• Decision Date: 13 October 1885
• Citation: 64 Wis. 244,25 N.W. 11
• Parties: BOARD OF SUP'RS OF COUNTY OF MILWAUKEE v. PABST AND OTHERS.
• Court: Wisconsin Supreme Court

64 Wis. 244

25 N.W. 11

BOARD OF SUP'RS OF COUNTY OF MILWAUKEE

v.PABST AND OTHERS.

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from circuit court, Milwaukee county.W. C. Williams, for respondent, Board of Sup'rs, County of Milwaukee.

Cotzhausen, Sylvester, Scheiber & Sloan, for appellants, Frederick Pabst and others.

ORTON, J.

Judgment in this case was entered and docketed in favor of the appellants, the defendants in the circuit court, and against the respondent, the plaintiff in said court, and notice thereof served on the fifteenth day of June, 1883, but was so entered as of the fifth day of October, 1882. The cause had been tried, and was finally decided on the seventh day of May, 1883, and the findings of fact and conclusions of law were filed on that day, and judgment was entered by the clerk on the same and docketed, as aforesaid, on the fifteenth day of June, 1883. The notice of the entry of said judgment served upon the district attorney states that the judgment was entered on the fifth day of October, 1882, and docketed June 15, 1883. An appeal was taken to this court from said judgment, June 15, 1885. The exceptions on the trial were noted by the reporter according to a rule and the practice of said court when objections were sustained or overruled, but no formal exceptions were taken by counsel otherwise, and no exceptions were filed to the findings and conclusions of law. On the twenty-first day of May, 1885, a rule was obtained by the plaintiff and appellant, returnable on the twenty-third day of the same month, that the defendants and respondents show cause why the time of filing exceptions to the findings and conclusions of law should not be extended so as to include the date of the hearing and decision of the rule, and why the exceptions to the findings and conclusions of law served with the rule should not be ordered filed, and why the time for serving a bill of exceptions should not be extended to include the time of the hearing and disposition of the rule, and why the bill of exceptions served at the time and with the rule should not be settled and signed, and such service declared a sufficient service thereof, and be ordered filed as the bill of exceptions in the cause. This rule was ordered served at least one day before the hearing thereof. The rule having been heard on affidavits showing exxcusable delay, by inadvertence, misapprehension, and sickness, an order was made on the sixth day of June, 1885, that the time for filing said exceptions be extended so as to include the tenth day of June, 1885, and that the excep ions so served with the rule be filed, and that the time of serving the bill of exceptions be extended so as to include said day, and that the service of the bill of exceptions with the rule, as aforesaid, be declared sufficient service, and that the defendants have until the thirteenth day of June, 1885, to serve amendments thereto, and that the bill of exceptions be settled and signed on the fifteenth day of June, 1885. From this order the defendants have appealed to this court.

The objections thereto urged in this court are: (1) That the appeal from the judgment in the cause was not taken within the time prescribed by law. The judgment was actually rendered, and entered so as to allow an appeal therefrom on the fifteenth day of June, 1883. The notice of the entry of such judgment served on the district attorney erroneously states that it was so entered on the fifth day of October, 1882. What effect the rendition of the judgment on the fifteenth day of June, 1883, as of the fifth day of October, 1882, may have upon the rights of the parties, or any one else, if any, it is not necessary to inquire; for it is certain that there was no judgment to appeal from until it was actually rendered and entered upon the findings on the fifteenth day of June, 1883, and the costs taxed and inserted therein. Bonesteel v. Bonesteel, 30 Wis. 151;Cord v. Southwell, 15 Wis. 211;Smith v. Hart, 44 Wis. 230;Andrews v. Welch, 47 Wis. 132;S. C. 2 N. W. Rep. 98;Haseltine v. Simpson, 61 Wis. 427;S. C. 21 N. W. Rep. 299, 302. The appeal and the time of signing the bill of exceptions were within the two years prescribed by the statute. (2) Objection is that the court could not extend the time of filing the exceptions. The statute (section 2831, Rev. St.) authorizing the court on motion and good cause shown, in discretion and upon terms, to allow any proceeding to be taken after the time limited by the statute, has but one...