Newman v. Board

• Decision Date: 12 March 1889
• Citation: 74 Wis. 303,41 N.W. 961
• Parties: NEWMAN v. BOARD ET AL.
• Court: Wisconsin Supreme Court

74 Wis. 303

41 N.W. 961

NEWMAN

v.BOARD ET AL.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, Juneau county.

Action by E. A. Newman against F. J. Board and J. C. Jacobson. Defendants appeal.Winsor & Winsor, for appellants.

A. C. Wilkinson and H. W. Barney, for respondent.

ORTON, J.

From the judgment rendered against the defendant by the justice, the defendant in due time perfected his appeal to the circuit court on the 18th day of January, 1887. It was duly noticed for and brought to trial at the following March term of the circuit court. A jury was impaneled, and all of the evidence given, and the cause was argued to the jury by the counsel of both parties, and was ready to be submitted to the jury on the instructions of the court. Thereupon, the counsel of the plaintiff moved that the appeal be dismissed on the ground that the return of the justice showed that the appeal was taken on the 12th day of February, 1887, and that, according to such date, it was not taken in time. The court thereupon discharged the jury, and continued the cause, and gave leave to the defendant to procure an amended return from the justice, to show the true date at which such appeal was in fact taken. At the next and October term of the court no notice of trial was served, as the amended return of the justice had not been made in time for such notice. At the next succeeding term of March, 1888, the plaintiff moved to dismiss the appeal on the ground that it had not been brought to a hearing by either party before the end of the second term after filing the return of the justice, by force of section 3766, Rev. St. The court granted said motion, and dismissed the appeal March 12, 1888. Judgment on such dismissal for costs against the defendant and J. C. Jacobson, his surety on such appeal, was rendered April 14, 1888. The appeal to this court was taken from said judgment, and no appeal had been taken from said order, and the time for such appeal had expired. This statement embraces all the material facts necessary to dispose of the questions raised. It seems to us that the statute requiring the appeal to be brought to a hearing before the end of the second term after filing the return of the justice, was fully complied with by the defendant. He did bring the appeal to a hearing by noticing it for trial, and by havinga jury impaneled, and introducing all of his evidence, and by his counsel addressing the jury. In the trial, to this extent, the plaintiff participated, and the appeal was not only brought to a hearing, but was fully heard. The defendant did all he could possibly do to comply with the statute. The amended return of the justice showed that the appeal was taken in time,--on the 18th day of January, 1887, instead of the 12th day of February, as the plaintiff claimed. The appeal was therefore properly brought to a hearing, and the cause might and ought to have been disposed of by a verdict of the jury, and a judgment thereon. It was no fault of the appellant that it was not, for he had taken his appeal in due time. The jury was discharged, and the cause continued after it had been fully tried and heard, merely to ascertain that fact. It was the plaintiff's fault that it was not disposed of at that time, by moving to dismiss the appeal on the ground that it had not been taken in time, when in fact it had been, and the defendant was entitled to have the cause fully and finally disposed of at the first term after the return of the justice was filed. If...