Chambers v. Jacobia

• Decision Date: 25 April 1899
• Citation: 79 N.W. 227,103 Wis. 37
• Parties: CHAMBERS v. JACOBIA.
• Court: Wisconsin Supreme Court

103 Wis. 37

79 N.W. 227

CHAMBERS

v.JACOBIA.

Supreme Court of Wisconsin.

April 25, 1899.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Clem D. Chambers against George E. Jacobia, impleaded with another. There was a judgment for plaintiff, and from an order at a subsequent term amending the judgment, defendant Jacobia appeals. Dismissed.

The action was commenced to recover a sum of money alleged to be due plaintiff on contract from George E. Jacobia & Co. George E. Jacobia was duly served with process and he caused an answer to be made to the complaint in the name of the company. On the trial of the case it appeared by due proof that, at the date of the alleged contract, the firm of George E. Jacobia & Co. was composed of George E. Jacobia and Frank A. Ross, but that before the commencement of the action it was dissolved and George E. Jacobia assumed and agreed to pay all its liabilities. A verdict was rendered in plaintiff's favor for $423.75, and thereafter judgment was rendered in form against George E. Jacobia & Co. and George E. Jacobia. At a subsequent term of the court within a year from the rendition of the judgment, on motion of plaintiff's attorney, without notice to Jacobia or his attorneys, the record was amended nunc pro tunc to make the judgment in form against George E. Jacobia doing business in the name of George E. Jacobia & Co., and all papers to correspond therewith. Execution was subsequently issued, pursuant to which certain real estate of Jacobia was advertised for sale. Pending the sale, Jacobia, by his attorney, moved the court for an order vacating the aforesaid amendatory order and the judgment against Jacobia personally. The motion was denied and Jacobia appealed.Dickinson, Kennedy & Graham, for appellant.

A. C. Titus, for respondent.

MARSHALL, J. (after stating the facts).

Appellant's counsel has not pointed out the statute under which this appeal can be sustained. It falls under subdivision 2, § 3069, Rev. St., which allows an appeal from an order affecting a substantial right made in a special proceeding or upon summary application in an action after judgment, if under any provision of the appeal statute. No substantial right of appellant was affected either by amending the record, the denial of the motion to vacate the amendment, or the original entry of judgment in form against him as well as the firm of George E. Jacobia & Co. The original judgment, so far as it was against ...