Holt v. Coleman
| Decision Date | 06 November 1884 |
| Citation | 21 N.W. 297,61 Wis. 422 |
| Parties | HOLT AND ANOTHER v. COLEMAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Oconto county.
A. Reinhart, for respondents.
Webster & Brazeau, for appellant.
This action was originally commenced in a justice's court by the respondents, against the appellant. The respondents recovered judgment in the justice's court, and the appellant appealed to the circuit court. The justice made his return to the circuit court of Oconto county previous to the May term of that court, 1882. The cause was noticed for trial at the May term, 1882. At that term the appellant applied to the court for and obtained an order changing the place of trial to Winnebago county, on account of the prejudice of the circuit judge. The order for a change of the place of trial was made and entered May 17, 1882; but the papers were not transmitted to the clerk of the circuit court of Winnebago county until October 13, 1882. And on January 3, 1883, the clerk of the circuit court of Winnebago county returned the records and papers in the case to the clerk of the circuit court of Oconto county, by the direction of said clerk, and they were received by said clerk and filed in his office, and thereafter the respondents noticed said case for trial at the May term, 1883, of the circuit court for Oconto county, and caused the same to be placed upon the calendar for said term; and when the same was called in its order upon the calendar, the respondents moved that the appeal be dismissed upon the ground that the cause had not been brought to a hearing before the end of the second term of the court after the filing of the return of the justice therein. It is admitted that two terms of the circuit court of Oconto county had elapsed after the return of the justice had been filed in that court, at which the case might have been tried, before the May term, 1883, at which the appeal was dismissed, viz., May and September terms, 1882.
The motion to dismiss the appeal was made under section 3766, Rev. St. 1878, which reads as follows: “If neither party shall bring the appeal to a hearing in the appellate court before the end of the second term after filing the return of the justice therein, such court shall dismiss the appeal, unless it shall continue the same by special order for cause shown.” This section was evidently intended to expedite the trial and disposition of cases coming into the circuit court by appeals from justices' courts; and two terms having passed since the justice's return was filed in said court, and no trial or hearing of the case having been had, the respondents were entitled to a dismissal of the appeal, unless the fact that an order changing the place of trial to Winnebago county, and the proceedings under that order, took the case out of the statute, or the fact that the respondents noticed the action for trial was a waiver of his right to such order.
It seems to us very clear that the obtaining an order for the change of the place of trial could not help the appellant, unless he made such order effectiveby procuring the transmission of the papers within the time provided by law. Section 2627, Rev. St., prescribes what shall be done in the action after an order changing the place of trial has been obtained; and, among other things, provides
In the case at bar, the order changing...
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Swan v. Porter
...be deemed vacated and no change for the same cause thereafter made.” Id. § 2627; Eldred v. Becker, 60 Wis. 48, 18 N. W. 720;Holt v. Coleman, 61 Wis. 422, 21 N. W. 297; Mantz v. Werner, 64 Wis. 408, 25 N. W. 206. Such failure to transmit the papers, however, is an irregularity which may be w......
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F. Dohmen Co. v. Niagara Fire Ins. Co. of City of New York
...as required, the proceeding for the change falls, and the clerk will have no authority thereafter to transmit the papers. Holt v. Coleman, 61 Wis. 422, 21 N. W. 297. It appears by the record that the clerk refused to recognize the existence of the order changing the venue after the expirati......
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Whitham v. Mappes
...the exercise of such reserved power by such appellate courts. Wilcox v. Holmes, 20 Wis. 307;Howe v. Elliott, 24 Wis. 677;Holt v. Coleman, 61 Wis. 426, 21 N. W. 297. “If, at the second term after a justice makes return to an appeal, the appellate court continues the case over the term for ca......
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Newman v. Board
...and his counsel argued the cause to the jury, and submitted it. What more could he have done to bring the appeal to a hearing? Holt v. Coleman, 61 Wis. 422, 21 N. W. Rep. 297;Platto v. Telegraph Co., 64 Wis. 341, 25 N. W. Rep. 421;Cook v. McDonnell, 70 Wis. 329, 35 N. W. Rep. 556;State v. S......