Congregation of Immaculate Conception of Barton v. Hellstern

• Decision Date: 27 February 1900
• Citation: 105 Wis. 632,81 N.W. 988
• Parties: CONGREGATION OF IMMACULATE CONCEPTION OF BARTON, WASHINGTON COUNTY, v. HELLSTERN.
• Court: Wisconsin Supreme Court

105 Wis. 632

81 N.W. 988

CONGREGATION OF IMMACULATE CONCEPTION OF BARTON, WASHINGTON COUNTY,

v.HELLSTERN.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from circuit court, Washington county; James J. Dick, Judge.

Action by the Congregation of the Immaculate Conception of Barton, Washington County, against Herman J. Hellstern. There was judgment for plaintiff, and defendant appealed. After his appeal was perfected, processes were issued on the judgment, which he moved the supreme court to recall. Motion denied.H. L. Eaton, for appellant.

Sawyer & Sawyer and P. O'Meara, for respondent.

BARDEEN, J.

This action was commenced in justice court of Washington county, appealed to the circuit court, and taken on change of venue to Waukesha county. On October 14, 1897, judgment was entered against defendant, and notice of entry thereof was served on the 19th. On March 15, 1898, the court made an order fixing the amount of the undertaking to be given by defendant to stay execution on appeal. On March 25, 1898, defendant served a notice of appeal, with a proper undertaking to stay execution, upon the plaintiff's attorney, and upon the following day on the clerk of the court, but failed to pay the fees necessary to secure their transmission to this court. On May 6, 1898, the trial court made an order, upon plaintiff's motion, requiring defendant to pay the clerk two dollars for his fees for transmitting the papers to this court, within 10 days, with costs of motion, and, in case of failure so to do, that his notice of appeal and undertaking be stricken from the files. The order also required the defendant to restore certain exhibits in his possession to the files, and provided that, upon failure to perform as stated, the judgment roll should be sent back to Washington county. Defendant having failed to comply with the terms of said order, the clerk returned the papers, as directed by said order, about May 23d. Thereupon an execution to collect the costs on said judgment was duly issued on May 28th, and placed in the hands of the sheriff. At about the same time a writ requiring the sheriff to oust the defendant from the premises in dispute, and give possession thereof to the plaintiff, was placed in his hands. The sheriff immediately proceeded to collect the amount due on the execution, and to execute the commands of the writ of restitution. The motion papers further show that some time in the latter part of May defendant paid the clerk at Waukesha the two-dollar fees required for transmitting the papers to this court, but which sum was returned to him because the papers had been returned to Washington county. On February 2, 1900, the defendant filed in this court an affidavit setting out the facts as stated, and asks this court to recall the execution and writ of restitution mentioned, and to restore the money collected, and possession of the property in dispute.

There can be no room to doubt the fact that, when defendant served his notice of appeal and undertaking, he had perfected his appeal according to the requirements of ...