Main v. McLaughlin

Decision Date13 January 1891
Citation78 Wis. 449,47 N.W. 938
CourtWisconsin Supreme Court


Appeal from circuit court, Milwaukee county.

Tomkins, Merrill & Smith, for appellant.

Cole & O'Keefe, for respondents.


The respondents obtained a judgment in the justice's court against the appellant, and the appellant appealed the case to the circuit court. At the December term of the circuit court, 1890, the appeal was dismissed on motion of the respondents, on the ground that more than two terms of the court had elapsed since the appeal, and that said cause had not been brought to trial, or any further proceedings had therein. At the subsequent May term of the court, on motion of the respondents, and against the objection of the appellant, said order dismissing the appeal was vacated, and the appeal reinstated. This appeal is from this last order. It may appear a little singular that the respondents should wish to have the appeal reinstated against the objection of the appellant, but the reason for such reinstatement is found in the affidavit of the counsel of the respondents, in support of the motion, as follows: “That after such dismissal, after a considerable negotiation between deponent and said Tomkins, [the counsel of the appellant,] said Tomkins raised the point that such sureties [in the undertaking on the appeal] were not liable upon the bond; and from an examination of the authorities it would seem to deponent that, in the case of the bond in question herein, the sureties are not liable, unless judgment is recovered against them in the circuit court upon the appeal.” It seems that, under the statute then in force, if the appeal was dismissed, the sureties could not be held to pay the judgment. But soon afterwards the statute was so amended that they could be held after the dismissal of the appeal. There is another reason given, but could not have been the ground of the order of reinstatement, and that is that said Tomkins represented that the sureties would pay the judgment if the appeal was dismissed. But Tomkins positively denied this statement in his affidavit. But, if this statement had not been denied, such a ground for the reinstatement of the appeal would be utterly frivolous. The real ground, if there was any, must have been that the counsel of the respondents procured the dismissal of the appeal under said mistake of the law. The court had no power to vacate the order dismissing the appeal after the term at...

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7 cases
  • Paschong v. Hollenbeck
    • United States
    • Wisconsin Supreme Court
    • April 7, 1961
    ...a mistake of law on the part of his attorney by changing a cause of action from ejectment to one of quiet of title. In Main v. McLaughlin, 1891, 78 Wis. 449, 47 N.W. 938, we reversed the reinstatement of an appeal from a justice of the peace to the circuit court where counsel for the respon......
  • Wegwart v. Beneditz
    • United States
    • Wisconsin Supreme Court
    • April 17, 1908
    ...defendant to answer. Among other references upon the part of the appellant were the following: Section 2832, St. 1898; Main v. McLaughlin, 78 Wis. 449, 47 N. W. 938;Bank v. Robbins, 67 Wis. 68, 29 N. W. 209, 893;Wheeler & Wilson Mfg. Co. v. Monahan, 63 Wis. 194, 23 N. W. 109;Pfister v. Smit......
  • LaCrosse Footwear, Inc. v. Labor and Industry Review Com'n
    • United States
    • Wisconsin Court of Appeals
    • November 3, 1988
    ...The statute was again renumbered sec. 269.46, ch. 4, Laws of 1925, and is now included in sec. 806.07, Stats. In Main v. McLaughlin, 78 Wis. 449, 47 N.W. 938 (1891), the court held that sec. 2832, R.S. 1878, contemplated a mistake of fact, not of law. Main was, however, effectively overrule......
  • State ex rel. Borgen v. Nitz
    • United States
    • Wisconsin Supreme Court
    • April 13, 1948
    ...was such an abuse of discretion in denying the motion as would warrant this court in reversing the decision.' See also Main v. McLaughlin, 78 Wis. 449, 47 N.W. 938;Erin Prairie v. Wells, 158 Wis. 140, 148 N.W. 1095;In re Coloma State Bank, 229 Wis. 475, 282 N.W. 568;Harder v. Davelaar, 184 ......
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