Main v. McLaughlin

• Decision Date: 13 January 1891
• Citation: Main v. McLaughlin, 78 Wis. 449, 47 N.W. 938 (Wis. 1891)
• Parties: MAIN ET AL. v. MCLAUGHLIN.
• Court: Wisconsin Supreme Court

78 Wis. 449

47 N.W. 938

MAIN ET AL.

v.MCLAUGHLIN.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Appeal from circuit court, Milwaukee county.

Tomkins, Merrill & Smith, for appellant.

Cole & O'Keefe, for respondents.

ORTON, J.

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...