Drinkwine v. City of Eau Claire
| Citation | 83 Wis. 428,53 N.W. 673 |
| Parties | DRINKWINE v. CITY OF EAU CLAIRE. |
| Decision Date | 15 November 1892 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from circuit court, Eau Claire county; W. F. BAILEY, Judge.
Action by C. P. Drink wine against the city of Eau Claire for personal injuries from a defective street. The claim was filed before the city council, and, on rejection, an appeal was taken to the circuit court. The defendant moved to dismiss the appeal because of defective appeal bond. Motion denied, and the defendant appealed. Reversed.L. A. Doolittle, for appellant.
Ellis & Allen, for respondent.
The respondent, Drinkwine, presented to the common council of the city of Eau Claire a claim for allowance for damages to his person and property, caused by an insufficient and defective street of the city, while he was traveling over it, and, his claim having been disallowed, he appealed to the circuit court of Eau Claire county, under section 25, c. 7, of the charter of Eau Claire, (Laws 1889, c. 184,) which requires that the appeal shall be perfected within 20 days after the action of the council disallowing the claim “by causing a written notice of such appeal to be served on the clerk of said city, and executing a bond to the city with a sufficient surety, to be approved by the clerk, or a court commissioner of Eau Claire county, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant by the court.” The city moved the circuit court to dismiss the appeal for the reason, among others, that the bond given is not conditioned as prescribed by the foregoing provision of the charter; the bond reciting that Drink wine had appealed “to the circuit court for Eau Claire county,” and being conditioned for the payment of all costs that should be adjudged against him by the court aforesaid, and not generally by the court, as prescribed by the statute. It is said that the bond does not afford the city the indemnity required by the statute, and that, should a change of venue or place of trial be awarded, the surety would not be liable for the costs adjudged against the appellant, Drinkwine, by the circuit court of the county to which the venue or place of trial in such event had been changed. The circuit court made an order denying the motion, and the city appealed.
1. It has been settled in a great number of cases, and is well understood, that if the appellant fails to comply substantially with the requirements of the statute in respect to perfecting such and similar appeals to the circuit court, the circuit court does not acquire jurisdiction of the person of the opposite party or of the subject-matter, and is without power to take any proceeding in the action, and that it is its duty to dismiss the appeal. Pelton v. Blooming Grove, 3 Wis. 310, and cases cited in note; Varney v. Carswell, Id. 744; Thompson v. Thompson, 24 Wis. 517. These cases show that the defect cannot be cured by amendment or by filing a new bond, nunc pro tunc, if, as in ...
To continue reading
Request your trial
-
Oshkosh Waterworks Company v. City of Oshkosh
...as to impair its obligations. This suggestion renders it necessary to ascertain the import of those decisions. In Drinkwine v. Eau Claire, 83 Wis. 428, 430, 53 N. W. 673, it appeared that Drinkwine preferred a claim against the city of Eau Claire, which was disallowed by the common council.......
-
Burger v. Sinclair
...... 149, 132 N.W. 768; Aldrich v. Public Opinion Pub. Co. 27 S.D. 589, 132 N.W. 278; Drinkwine v. Eau. Claire, 83 Wis. 428, 53 N.W. 673; Bryson v. Lucas, 85 N.C. 397; Harshaw v. McDowell, 89. ......
-
Jefferson Gardens, Inc. v. Terzan
...to this court, there would have been no liability upon the bond. The respondent contends that the motion is ruled by Drinkwine v. Eau Claire, 83 Wis. 428, 53 N. W. 673, wherein an appeal was dismissed because the statute provided as a condition of an appeal that a bond should be given by ap......
-
Burger v. Sinclair
...R. C. Respondent relies upon the cases of Aldrich v. Public Opinion Publishing Co., 27 S. D. 589, 132 N. W. 278,Drinkwine v. City of Eau Claire, 83 Wis. 428, 53 N. W. 673,State v. Monroe, 37 La. Ann. 113, and Thompson v. Thompson, 24 Wis. 515. To the extent that the South Dakota court in th......