Juneau Co. v. Hooker

• Decision Date: 23 November 1886
• Citation: 30 N.W. 357,67 Wis. 322
• Parties: JUNEAU CO. v. HOOKER.
• Court: Wisconsin Supreme Court

67 Wis. 322

30 N.W. 357

JUNEAU CO.

v.HOOKER.

Supreme Court of Wisconsin.

November 23, 1886.

Appeal from circuit court, La Crosse county.

Motion by plaintiff to reinstate action sustained. Defendant appeals.J. J. Hughes and Winsor & Winsor, for respondent, Juneau Co.

Turner & Barney and Pinney & Sanborn, for appellant, Hooker.

ORTON, J.

This action was brought under section 1127, Rev. St., to recover of the defendant personal property taxes which had been returned unpaid, and personal service of the summons was made upon the defendant in the county. The venue was changed to the county of La Crosse--the county where the defendant resided--in December, 1885. On April 28, 1886, the plaintiff's attorneys procured an order in supplementary proceedings, to be signed by the judge, requiring the defendant to appear and answer concerning his property, under the same section of the statute. In the mean time the defendant had become a resident of the state of Alabama, and, when he came to Wisconsin to attend the trial of this cause, he was served with the following notice: “Please take notice that the above-entitled action is hereby discontinued. Upon taxation, the plaintiff will pay the defendant's costs.” Dated “May 4, 1886.” Signed by “J. J. HUGHES. WINSOR & WINSOR, Pl'ff's Attys.” Immediately after the service of this notice, the order in supplementary proceedings was served upon the defendant at Mauston, Juneau county, in this state. On the hearing of the order, the defendant set up and made it appear that at the time of its service, and at the time of the hearing, he was a resident of the state of Alabama, and thereupon said supplementary proceedings were dismissed. It appears that soon after said notice of discontinuance of the action had been served upon the defendant the case was called in open court, and it was announced by the said attorneys of the plaintiff that it had been and was discontinued, and it was so entered by the judge upon his minutes, and was also so entered upon the minutes of the clerk. When it was ascertained that the defendant had removed to and become a resident of Alabama, and for that reason that the supplementary proceedings would not lie against him, and for that reason were dismissed, the learned counsel of the plaintiff then moved the court to set aside the dismissal and discontinuance of this action, on the ground that they did not know, at the time the discontinuance was so entered, and notice thereof given, and the service of the order in supplementary proceedings, that the defendant was a non-resident, and therefore not liable to such procee lings. On said motion the court set aside said discontinuance, and reinstated the cause in said court, upon plaintiff paying the costs and disbursements of the defendant up to that time. From that order this appeal is taken.

It is now insisted by the learned counsel of the plaintiff that the cause was never fully discontinued, because said notice had never been filed, and no formal order had been signed by the judge, and the costs had never been taxed or paid. If this is so, then this motion was unnecessary. The plaintiff admits by the motion to set aside the discontinuance that the case had been...