Moudry v. Patrick Cudahy Family Co.

• Decision Date: 24 October 1916
• Citation: 159 N.W. 750,164 Wis. 510
• Parties: MOUDRY v. PATRICK CUDAHY FAMILY CO.
• Court: Wisconsin Supreme Court

164 Wis. 510

159 N.W. 750

MOUDRY

v.PATRICK CUDAHY FAMILY CO.

Supreme Court of Wisconsin.

Oct. 24, 1916.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by William Moudry against the Patrick Cudahy Family Company. There was judgment for plaintiff, defendant appealed to the circuit court, and plaintiff moved therein to have the appeal dismissed as improperly taken. Judgment was entered for plaintiff in the circuit court for a less amount than in the civil court, and to review denial of his motion to have the appeal dismissed as improperly taken, plaintiff proceeds under St. 1915, § 3049a. Judgment of the circuit court reversed, and cause remanded, with instructions to dismiss the appeal to that court.

This is an appeal from a judgment of the circuit court. Plaintiff secured a verdict of $308 in the civil court, which was trebled under section 3367, Stats., and the amount of defendant's counterclaim, $75 for rent, deducted therefrom, and judgment entered for the balance and costs. On appeal the circuit court disallowed treble damages, and entered judgment for $286.69. The plaintiff moved in the circuit court to have the appeal dismissed for the reason that it was not properly taken. The motion was denied, and plaintiff on proper proceedings under the statute, § 3049a, asks this court to review that ruling.Markham, Freeman & Cudahy and Henry J. Bendinger, all of Milwaukee, for appellant.

W. F. Thiel, of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above).

Several errors are assigned and discussed in this case, but in the view we take of it, it is only necessary to consider the motion made by the respondent in the circuit court to dismiss the appeal, because not properly taken. It appears, without dispute, that when the appeal was taken from the civil to the circuit court the judgment had not been entered nor the costs taxed. Civil Court Act, § 28, c. 54, Laws of 1909, as amended by chapter 320, Laws of 1913, provides that the appeal shall be taken within 20 days after entry of the judgment or order appealed from. It is conceded by counsel for appellant that, independent of section 2836a, Stats., no appeal was taken, but it is claimed that this statute cures the defect in taking the appeal before entry of judgment. This statute provides that in case it shall appear upon a hearing on a motion to dismiss an appeal that the appeal was attempted to be taken in good faith, the court shall...