Oint Sch.-Dist. No. 7 of Brighton & Paris v. Kemen

• Decision Date: 01 March 1887
• Citation: 68 Wis. 246,32 N.W. 42
• Parties: JOINT SCHOOL-DIST. NO. 7 OF BRIGHTON AND PARIS v. KEMEN AND OTHERS.
• Court: Wisconsin Supreme Court

68 Wis. 246

32 N.W. 42

JOINT SCHOOL-DIST. NO. 7 OF BRIGHTON AND PARIS

v.KEMEN AND OTHERS.

Supreme Court of Wisconsin.

March 1, 1887.

Appeal from circuit court, Kenosha county.

This is an appeal from an order of the circuit court of Kenosha county, dated the twenty-ninth day of May, A. D. 1886, dismissing the action. The action was commenced on the twenty-third day of March, A. D. 1885, to recover the possession of the school-house and seats and desks and other furniture belonging to said district, which cost the district over $1,000, and the district consisted of more that 2,800 acres of land, assessed at $52,600, and personal property assessed at $11,000. The case was in this court on a former appeal from the order of the circuit court striking out parts of the complaint, (27 N. W. Rep. 31,) and the opinion of this court therein was filed on the twenty-third day of February, A. D. 1886. The defendants, by the affidavits of William Kemen of May 2, A. D. 1885, and of T. W. Spence of May 21, A. D. 1885, requested that the plaintiff give security for costs. The circuit court then made an order for the plaintiff to show cause why the plaintiff should not give security for costs. The plaintiff showed cause, by different affidavits, and certified copies of records, why the defendant had no right to demand security for costs in this action, and also moved the court in writing to dismiss the order to show cause, for the reason that no cause is stated, as required by law in the affidavits on which the order is founded, to entitle the defendants to require the plaintiff to file security for costs. On the twenty-third of May, 1886, the circuit court made an order that the plaintiff show cause why an order should not be entered dismissing this action. This order was not served personally on the plaintiff's attorney. The plaintiff's attorney not receiving the copy of the order to show cause in time, did not appear on said twenty-ninth day of May, A. D. 1886. The circuit court then made an order that the above-entitled action be dismissed, and that the defendants have their costs sustained herein. To this order the plaintiff duly excepted, and this is the order that the plaintiff has appealed from. On the first day of July, A. D. 1886, the plaintiff paid to the defendant's attorney the $10 costs on said order striking out part of the complaint; but the defendants have not answered to the complaint yet.Henry Wiesmann, for appellant.

Quarles & Spence, for respondents.

LYON, J.

This appeal is from a judgment of the circuit court dismissing the plaintiff's complaint, with costs, for...