Irvin v. Smith

• Decision Date: 01 March 1887
• Citation: 68 Wis. 220,31 N.W. 909
• Parties: IRVIN AND OTHERS v. SMITH.
• Court: Wisconsin Supreme Court

68 Wis. 220

31 N.W. 909

IRVIN AND OTHERS

v.SMITH.

Supreme Court of Wisconsin.

March 1, 1887.

Appeal from circuit court, Door county.

This was an action of replevin brought by Richard Irvin and others, respondents, against John Smith, appellant. The plaintiffs took the property when they began suit, which defendant alleged they stole, and that during the pendency of the suit it became worthless. The judgment was that certain railroad ties, fence posts, and telegraph poles taken by plaintiffs belonged to defendant. Execution was issued, and the writ commanded the sheriff to take and deliver to the defendant the ties, posts, and poles; but, if such delivery could not be made, the sheriff was commanded to collect the judgment money. The sheriff could not find the property, and, the plaintiffs residing out of the state, the sheriff published in a newspaper a notice of sale of certain land of theirs to satisfy the judgment, which contained a recital, “Whereas, a return of personal property could not be had,” etc. The plaintiffs moved the court below for an order recalling the execution, and declaring the judgment for a return of the property satisfied, upon the ground that the property therein described had been returned to the defendant; and, upon the hearing of the said motion, the court, with the consent of the parties, made up issues to be tried, and awarded a reference to take evidence on the same. The referee took the testimony, reported to the court, and, upon the affidavits to show cause and such testimony, the court rendered a judgment in the nature of audita querela recalling the execution, and ordering the replevin judgment satisfied. The sheriff, pursuant to this judgment, returned the execution, but stated in his return that he returned it unsatisfied. The judgment was reversed by the supreme court (27 N. W. Rep. 35) on account of a mistrial, and because the recital in the notice of sale of lands was held to have the force and effect of a return, and conclusive until set aside. The plaintiffs moved the supreme court for a rehearing, which was denied, with costs, but an opinion was written (28 N. W. Rep. 351) in which it is said that the plaintiffs are not bound to proceed against the sheriff, but may rid themselves of the effect of the recital in the notice of sale by a direct proceeding for that purpose. The plaintiffs then moved the court below to strike out the recital in the notice of sale which was held an estoppel on them in their former proceeding, preliminary to their making a new motion to have the judgment satisfied. They joined with this a request to have the word “unsatisfied” stricken out of the return on the back of the execution, which was made, or attempted to be made, by the sheriff at the time of and pursuant to the judgment which was afterwards reversed as aforesaid. Notice of this motion was served upon the adverse parties and the sheriff, and an order, being the order appealed from, was made quashing the said recital in said notice of sale, and correcting the return of the sheriff on the back of the execution by striking out the word “unsatisfied.”W. H. Timlin, for respondents.

J. J. Tracy and O. E. & Y. V. Dreutzer, for appellant.

COLE, C. J.

A motion was made to dismiss the appeal herein, which has been decided, but no opinion was given on the motion. It is thought advisable to state here our views upon the question of practice involved in the motion. The ground of the motion was that no notice of appeal such as is required by law was ever served. After entitling the cause, the notice states “that the defendant appeals to the supreme court from the order of the circuit court entered on the twenty-sixth day of July, 1886, in the above-entitled cause.” The objection to this notice is that it fails to state whether the appeal is from the whole or some part of the order. The statute requires a notice in writing to be served on the adverse party, and on the clerk of the court in which the judgment or order appealed from is entered, “stating the appeal from the same, and whether the appeal is from the whole or some part thereof, and, if from a part only, specifying the part appealed from.” Section 3049. Now, when a party appeals from an entire order or judgment, it is said the notice must state that the appeal is from “ the whole thereof,” or the notice will be defective. We do not think that this is the meaning of the statute. Where the appeal is from an order or a judgment, the necessary implication is that it is from the whole of the order or judgment. Saying, in such a case, that the appeal is from the “whole thereof,” is mere tautology, and adds nothing to the sense. The object of the statute is, where an appeal is from a part of an order or judgment, that the notice shall specify the part appealed from. But no such statement is necessary when the appeal is from an order or judgment, because, as we have said, the plain implication is that the appeal is from the whole of such order or judgment. For these reasons we deemed the notice of appeal in this case sufficient. In Olinger v. Liddle, 55 Wis. 621, 13 N. W. Rep. 703, which counsel relied on to support his motion to dismiss, there was an attempt to include two judgments in one appeal. It was claimed that the statement in the notice that the appellant “appeals from the whole and every part thereof” referred only...