Shafer v. City of Eau Claire

• Decision Date: 09 January 1900
• Parties: SHAFER v. CITY OF EAU CLAIRE.
• Court: Wisconsin Supreme Court

105 Wis. 239

81 N.W. 409

SHAFER

v.CITY OF EAU CLAIRE.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Esther Shafer against the city of Eau Claire. Judgment for defendant. Plaintiff appeals. Reversed.

This is an action to recover damages for personal injuries sustained by the plaintiff while traveling over a certain bridge in the city of Eau Claire, which injuries were alleged to have been caused by reason of the want of repair of said bridge. The insufficiency complained of was that a piece of scantling composing a part of the railing of the bridge had become loose at one end, and swung away from the railing, and that while she was crossing said bridge in a buggy the driver drove close to the railing, in order to pass some teams going in the opposite direction, and that while so passing the loose end of the scantling caught in some manner against some part of the buggy, and was forced up into the buggy, striking the plaintiff and injuring her. The claim was properly presented to the common council of the city, and disallowed, and appeal was duly taken to the circuit court of Eau Claire county. The defendant by answer admitted that the bridge was a part of the highway, but denied any negligence, and set up the plaintiff's contributory negligence. The action was tried before a jury, and a general verdict for the defendant was rendered, and from a judgment in accordance with the verdict the plaintiff appeals.T. F. Frawley and C. T. Bundy, for appellant.

Wickham & Farr, for respondent.

WINSLOW, J. (after stating the facts).

The errors claimed are all based upon rulings made upon the trial. Prior to the argument the respondent moved to strike out the bill of exceptions because not settled within two years from the date of the judgment, and this motion must first be disposed of. It appears that judgment was perfected November 25, 1895, but no notice of entry thereof was ever given. A proposed bill of exceptions was served July 29, 1897. Amendments were proposed by the respondent September 25th following, in the form of a motion to substitute the reporter's minutes for the proper bill. This was agreed to by the appellant, and the same was thereafter perfected under the direction of the respondent's attorney, but not fully completed until December 29, 1897, when it was stipulated in writing by the attorneys of both parties that the same be signed without notice, and it was then settled and signed by the trial court. Some amendments were subsequently made in the bill on motion of the respondent. The appeal was duly perfected October 13, 1897. Thus, the situation is that the appeal was duly taken, and a proposed bill of exceptions served within two years from the rendition of the judgment, but the bill itself was finally settled after the expiration of the two years, for the convenience of the respondent, and in pursuance of an express stipulation. It is insisted in support of the motion that the court had no power to settle a bill of exceptions after the two years allowed for an appeal had expired, notwithstanding the fact that an appeal had been taken in due time. There is no statute thus limiting the time in which a bill of exceptions must be settled, but reliance is placed upon the cases of Cameron v. Sullivan, 15 Wis. 510;Evans v. Insurance Co., 54 Wis. 522, 11 N. W. 594; and Miller v. State, 77 Wis. 271, 45 N. W. 1129. That there is language in these cases apparently justifying the contention cannot be denied. In Cameron v. Sullivan an appeal had been taken within the two years, but the bill of exceptions was settled after the expiration of the two years, and it was stricken out on the sole ground that there was no statute or rule of court authorizing the settling of the bill “after such lapse of time.” In Evans v. Insurance Co. it was said that “when the time for appealing has expired the circuit court lost all power to enlarge the time for settling the bill of exceptions in the case.” It is to be noted that it did not appear in the case, so far as the record shows, that any appeal had been taken from the judgment. In Miller v. State, which was a criminal case, it was held that a bill of exceptions could not be legally settled and signed after the expiration of the two years from the date of the judgment, although in that case a writ of error had been duly sued out within the two years. The case of Ray v. Hixon, 90 Wis. 39, 62 N. W. 922, also has some bearing on the subject; for in that case it was said, upon the authority of Evans v. Insurance Co., that when there is no right of appeal there is no right to settle a bill of exceptions. In none of the cases does it appear that there was a stipulation of the parties authorizing the settlement of the bill of exceptions after the expiration of the two years, as there was in the case before us. If, however, the court has no power to settle a bill after the two years has expired, as it has no power to permit an appeal after the time, then even a stipulation of the parties could not confer that power, because it is a question of jurisdiction. It is not easy to see upon what line of reasoning the power or jurisdiction is denied, in the absence of a mandatory statute. As has been said,...