Cent. Nat. Bank of Milwaukee v. Brand

• Decision Date: 11 October 1898
• Citation: 100 Wis. 648,76 N.W. 608
• Parties: CENTRAL NAT. BANK OF MILWAUKEE v. BRAND.
• Court: Wisconsin Supreme Court

100 Wis. 648

76 N.W. 608

CENTRAL NAT. BANK OF MILWAUKEE

v.BRAND.

Supreme Court of Wisconsin.

Oct. 11, 1898.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by the Central National Bank of Milwaukee against M. H. Brand and others. From an order allowing defendant Brand to answer on conditions after the time for answering has expired, he appeals. Appeal dismissed.

This is an appeal from an order made June 25, 1898, in relation to the terms of granting the defendant leave to file an answer in and defend the case of Central National Bank against Brand, impleaded, etc. Was the order appealable? The action was to recover upon a note made by Brand, the appellant, to the plaintiff, for $1,200, dated August 11, 1894, indorsed by the defendant Cairncross. Brand, having failed to answer the complaint within the prescribed time, obtained an order to show cause why he should not be permitted to file and serve an answer in the action, and that proceedings be stayed until the hearing and determination of the motion. It was based upon an affidavit of Brand that no judgment had been entered in the action, and that no answer had been served therein. Other affidavits were read at the hearing. The court made an order that the motion of the defendant be granted upon condition that within 10 days after the service of a copy of the order upon the defendant or his attortorney he file with the clerk of the court a bond, with two sufficient sureties, in the penalty of $1,500, conditioned to pay any judgment that might be recovered against him in the action, such bond to be first duly approved by the judge of the court as to form and sufficiency of sureties, and that thereupon the answer served with said motion papers stand as the answer of the defendant to the complaint, and that the plaintiff have 20 days after the expiration of the 10 days therein limited for the defendant to file such bond in which to reply or demur to said answer, if so advised. The defendant Brand appealed from that part of the order above stated fixing the condition upon which leave was granted to serve and file such answer, etc. The court required the defendant, as a condition of granting the relief sought, to file with the clerk an undertaking, with two sureties, to be approved by the court, both as to form and sufficiency of sureties, in the penalty of $1,500, conditioned to pay any judgment that might be recovered in the cause, and all costs and...