Redin v. Wagner
| Decision Date | 13 April 1915 |
| Citation | 160 Wis. 447,152 N.W. 160 |
| Parties | REDIN v. WAGNER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an Order of the Circuit Court for Winnebago County; George W. Burnell, Circuit Judge. Reversed.
Action to recover compensation for injuries caused by an assault and battery. It was begun in justice court. Upon the return day an affidavit of prejudice was filed on behalf of the defendant. Thereupon the cause was duly transferred to the next nearest justice. There was then an adjournment by consent without issue having been joined. Upon the adjourned day plaintiff made due complaint for recovery of damages and moved the court for leave to amend so as to stand in the name of the claimant by his next friend, he being a minor. The motion was granted and the name of a next friend duly entered. Defendant, under protest that the change aforesaid was improper, answered, counterclaiming for damages and demanded security for costs. The motion was granted. Thereupon L. J. Somers offered to sign the docket as surety. The court refused to accept Mr. Somers as surety and because of plaintiff's refusing otherwise to comply with the court's order, it dismissed the action with costs. The cause was duly removed, by appeal, to the circuit court where it was dismissed because the cause was not commenced by a next friend instead of by the minor in his own name.Somers & Velte, of Neenah, for appellant.
Henry Fitzgibbon, of Menasha, for respondent.
This appeal presents two questions which may be briefly stated and answered.
[1] Upon failure to give security for costs in compliance with an order in justice court to do so under section 3782, Stats., may the justice enter a judgment of dismissal which may be appealed from, affording the circuit court jurisdiction of the action? That is ruled in the affirmative by Steinam v. Sculte, 83 Wis. 567, 53 N. W. 844,Dorothy v. Richmond, 107 Wis. 652, 83 N. W. 768, and Simanek v. Nemetz, 120 Wis. 42, 97 N. W. 508. In such a case the appellate tribunal may require security for costs to be given.
[2] Is failure to have a “next friend” appointed for an infant plaintiff under section 3613 and to institute his action in the name of such friend a jurisdictional defect? That is ruled in the negative by Hafern v. Davis, 10 Wis. 501,Sabine v. Fisher, 37 Wis. 376,Hepp v. Huefner, 61 Wis. 148, 20 N. W. 923, and Webber v. Ward, 94 Wis. 605, 69 N. W. 349.
True, the section referred to is in mandatory language, but it must...
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Rohleder v. Wright
...He still remains a party to the action, and the omission to appoint may be remedied at any stage of the proceeding. Redlin v. Wagner, 160 Wis. 447, 152 N. W. 160, and cases cited. Hence, when the statute in general terms provides that the examination of a party may be taken, it must be cons......
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Green v. Mills
...on the trial and proceed to try the action. Hepp v. Huefner, 61 Wis. 148, 20 N. W. 923;Sabine v. Fisher, 37 Wis. 376;Redlin v. Wagner, 160 Wis. 447, 152 N. W. 160;Hafern v. Davis, 10 Wis. 501;Smith v. Peckham, 39 Wis. 414, 418;Webber v. Ward, 94 Wis. 605, 69 N. W. 349. [3] On October 2, 191......