Hallam v. Stlles
| Decision Date | 14 October 1884 |
| Citation | 61 Wis. 270,21 N.W. 42 |
| Parties | HALLAM v. STLLES AND ANOTHER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Chippewa county.
This cause was tried by the court, which found, in effect, that October 5, 1876, a judgment was rendered in favor of this plaintiff and against Putnam and Nickey for $886.57, in the circuit court for Green county, Wisconsin; that Nickey appealed therefrom to this court, December 26, 1876, and on that appeal gave an undertaking in the requisite form, with the defendants herein as sureties; that April 27, 1877, the appeal was dismissed for want of prosecution, and the sum of $37.79 costs on the appeal awarded against Nickey; that May 11, 1877, an execution against Nickey was issued out of this court for the collection of such costs, but the same was returned wholly unsatisfied; that no execution was issued out of the circuit court for Green county against Nickey for the collection of such judgment. As conclusions of law the court found in effect that the defendants were not indebted to the plaintiff on the undertaking for the judgment recovered in the circuit court, but only for the cost on appeal in this court, and for such cost the plaintiff was entitled to recover of the defendants herein $37.79, together with interest from April 27, 1877, at 7 per cent. per annum, and his costs and disbursements, and for that amount judgment was ordered therein, and the same was entered accordingly, and from which this appeal is brought by the plaintiff on the ground that he did not recover as much as he was entitled to.Knight & Hayes, for appellant.
Hollan Richardson, for respondents.
It is claimed that the plaintiff's remedy upon the undertaking, if any, was against Nickey and the sureties jointly, and not against the sureties separately. To make such objection available, it should have been raised either by demurrer (Rev. St. § 2649, subd. 4) or answer. Rev. St. § 2653. Not having been so taken, the defendants must be deemed to have waived the same. Rev. St. § 2654. It is urged that the record does not show that the appeal was dismissed for want of prosecution. But the trial court so found, and there is no exception to that finding, and hence it must be taken as a verity. The appeal upon which the undertaking was given was taken after chapter 151, Laws 1876, went into effect. Assuming, for the purposes of this appeal, that that chapter had not, as to these sureties, been superseded by section 3067, Rev. St., still we think the essential conditions imposed by that chapter, to entitle the plaintiff to recover the whole...
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