Priest v. Varney

• Decision Date: 01 December 1885
• Parties: PRIEST v. VARNEY.
• Court: Wisconsin Supreme Court

64 Wis. 500

25 N.W. 551

PRIEST

v.VARNEY.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Fond du Lac county.

This action is to recover for services rendered and moneys expended by the plaintiff as attorney for the defendant. The answer denies the extent and value of the services and the amount of money expended. On application of the plaintiff, the court, July 15, 1884, ordered that the issues be referred to a commissioner to hear and decide the whole issue and report thereon to the court. This order recited the appearance of the defendant by his attorney, and that, “from an inspection of the pleadings and the admission of counsel for the defendant, that the trial of issues of fact in the action” would “require the examination of a long account on each side.” The defendant's attorney thereupon moved the court, upon his own affidavit, to strike out of said order the words “the admission of counsel for the defendant.” That motion was resisted by a counter-affidavit on the part of the plaintiff; and on the hearing thereof the court, August 6, 1884, modified that part of the recitals in the order which are quoted above by striking out the word “defendant,” in italics, and inserting in lieu thereof the words “parties that the plaintiff's bill of items contains seventy items, and the defendant's bill of particulars contains thirty items;” but that said order in other respects was allowed to remain the same. In June, 1885, the defendant moved the court, upon an affidavit, to set aside and vacate said order of reference so modified, “for the reason it was improvidently and illegally granted.” That motion was resisted by an affidavit on the part of the plaintiff, and the court thereupon made an order thereon of which the body is as follows: “This case having come on to be heard on notice of motion by the defendant to set aside and vacate the order of reference made therein and dated July 15, 1884, and it appearing that the original order, bearing date on said last-named day, had been modified by the court on the application of the defendant on the sixth day of August, 1884, after hearing Mr. Blair for the defendant and Mr. Bragg for plaintiff, the court refused to reconsider its former decision, and denies the motion, with ten dollars costs. Dated June 15, 1885.” This order was excepted to by the defendant. July 9, 1885, the defendant appealed from both of these orders to this court.E. S. Bragg, for responden...