Drake v. Scheunemann

• Decision Date: 22 June 1899
• Parties: DRAKE v. SCHEUNEMANN ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 458

79 N.W. 749

DRAKE

v.SCHEUNEMANN ET AL.

Supreme Court of Wisconsin.

June 22, 1899.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by George A. Drake against August Scheunemann and others. From an order reinstating the cause on appeal from a justice, plaintiff appeals. Affirmed.

The superior court acquired jurisdiction of the cause by appeal from a judgment rendered for plaintiff in justice court. On the last day of the fourth term of the court, after the appeal was taken, to which term the cause had been regularly continued, it was dismissed on plaintiff's motion for want of prosecution. At the next term of the court, on motion of defendants' attorney, the appeal was reinstated on terms that they pay the fees of plaintiff's witnesses upon the former appearance, assessed at $3.50. The order was duly excepted to. The fees were paid to, and receipted for by, plaintiff's attorneys, who thereafter participated without objection in a trial of the cause upon the merits, resulting in a verdict and judgment for defendants, from which this appeal was taken solely to test the order reinstating the cause, an appeal from the order being joined with that from the judgment.C. S. Carter, for appellant.

O. W. Bow, Jr., for respondents.

MARSHALL, J. (after stating the facts).

The order is not appealable if for no other reason, because it is subject to review on appeal from the judgment. The right of appeal from an intermediate order ceases on the entry of judgment. Machine Co. v. Gurnee, 38 Wis. 533;Donkle v. Milem, 88 Wis. 33, 59 N. W. 586.

The order was granted upon condition of the payment of plaintiff's witness fees on the appearance at the time the cause was dismissed. Acceptance of the fees by plaintiff's attorneys, and going to trial on the merits without objection, waived any error in the order. That has been repeatedly decided by this court, as evidenced by numerous cases cited by respondents' counsel. Cogswell v. Colley, 22 Wis. 399;Webster-Glover Lumber & Manufacturing Co. v. St. Croix Co., 71 Wis. 317, 36 N. W. 864;Smith v. Coleman, 77 Wis. 343, 46 N. W. 664;McKinnon v. Wolfenden, 78 Wis. 237, 47 N. W. 436;Laird v. Giffin, 84 Wis. 286, 54 N. W. 584;Mills v. Insurance Co., 92 Wis. 90, 65 N. W. 730;Cook v. McComb, 98 Wis. 526, 74 N. W. 353. That requires an affirmance of the judgment.

The judgment of the superior court is affirmed.