Morris v. Brewster

• Decision Date: 08 April 1884
• Citation: 60 Wis. 229,19 N.W. 50
• Parties: MORRIS v. BREWSTER AND ANOTHER.
• Court: Wisconsin Supreme Court

60 Wis. 229

19 N.W. 50

MORRIS

v.BREWSTER AND ANOTHER.

Supreme Court of Wisconsin.

Filed April 8, 1884.

Appeal from circuit court, Chippewa county.

Arthur Gough, for respondent, Patrick Morris.

Marshall & Jenkins, for appellants, D. E. Miles and another.

ORTON, J.

The plaintiff recovered judgment before the justice for $37.87 and costs, and the following paper was presented to the justice as a notice of appeal to the circuit court:

“PATRICK MORRIS, Plaintiff, against L. D. BREWSTER and D. E. MILES, Defendants.

To Henry Coleman, Municipal Judge: Please take notice that the above named Patrick Morris hereby appeals to the circuit court of the county of Chippewa from the judgment entered in this action before _______, the above named municipal judge in and for Chippewa county, Wisconsin, in favor of the above named _______ and against the above named defendants, for the sum of thirty-seven 87-100 dollars damages, and eleven and 53-100 dollars costs.

+--------------------------------+
                ¦Yours, etc.,¦D. E. MILES.       ¦
                +------------+-------------------¦
                ¦            ¦LOREN D. BREWSTER.”¦
                +--------------------------------+
                

The circuit court, on motion, dismissed the appeal on account of this notice being materially defective, and overruled an application to amend it, and this is the error complained of. This is the most defective attempt to present to the justice the notice of appeal required by the statute I ever saw.

(1) The title of the case is, Patrick Morris against L. D. Brewster and D. E. Miles. This paper is signed D. E. Miles and Loren D. Brewster. These are not the names or the position of the names of the party defendants in the action. “L. D. Brewster” may be “Loren,” or Lorenzo, or Ludwic, or any other name beginning with the letter “L.” But, if the same person, the names are transposed so as to make the title of the case different. It does not appear that they are the same persons, or that the notice is in the same case. It may be said that this may be inferred, but such an inference might be wrong or false, and if so, then it is no legal or proper inference. A legal inference must have the force of a conclusion from premises. We might conjecture or guess that they are the same persons, and in the same case, but we cannot so infer or conclude.

(2) In the description of the judgment, the place for the name of the plaintiff is left blank. There is a reference to some person above named, which makes the description of the judgment in itself imperfect.

(3) The attempted appeal is from “the judgment entered in this action, when the statute uses the word “rendered.”

(4) “The above named Patrick Morris hereby appeals,” etc. This of itself is substantially and radically incorrect. This is the only language in the notice which even indicates who the appellant is. Can it be inferred that the defendants are the appellants because the notice is signed by D. E. Miles and Loren D. Brewster? This is not the title of the judgment defendants, and, if they are the same persons, they do not say they have appealed or wish to appeal.

It is said that the statute does not require any particular form of notice, but only “a notice of appeal;” and the learned counsel of the appellant argues with great zeal that the justice could easily “spell out” the notice which the paper was intended to express, and detect the omissions and mistakes therein, and that he must have known what was meant and intended by it. Suppose at the same time the judgment was rendered by the justice, while the parties were still in his office, and the trial and verdict were the only topic of conversation or subject of present concern, the defendants should write “we appeal to the circuit court,” and sign it and present it to the justice. The justice would probably have known just what the defendants meant by it. But would it be a sufficient notice of appeal, and appear in the record as such,...