State ex rel. Mitchell v. Johnson

• Decision Date: 15 December 1899
• Citation: 80 N.W. 1104,105 Wis. 90
• Parties: STATE EX REL. MITCHELL v. JOHNSON, JUDGE.
• Court: Wisconsin Supreme Court

105 Wis. 90

80 N.W. 1104

STATE EX REL. MITCHELL

v.JOHNSON, JUDGE.

Supreme Court of Wisconsin.

Dec. 15, 1899.

Mandamus by the state, on relation of John L. Mitchell against Daniel H. Johnson, judge of the Milwaukee county circuit court, to compel the dismissal of an action. Application granted.

On October 22, 1897, this court reversed a judgment in favor of John S. Conway and against the relator. 97 Wis. 290, 72 N. W. 752, The costs upon such reversal were taxed at $216.20. Plaintiff paid the fees of the clerk of this court, and procured remittitur to be filed, and noticed said cause for the October term of the circuit court for Milwaukee county, commencing October 3, 1898. On that day, in arranging the calendar, the plaintiff requested, and defendant consented, that this cause be marked not to be taken up for trial prior to November 2, 1898. On November 1, 1898, relator procured and served an order to show cause why said action should not be dismissed for nonpayment of costs within one year from the date of the reversal; that order being returnable November 12th, and being based upon affidavits showing the fact of nonpayment. On November 12th the attorneys for said Conway appeared, and represented to the court that amendment of the pleadings and continuance of the cause would be necessary, and that they were then willing to pay the costs taxed in this court; whereupon the court entered an order denying relator's motion that the cause be dismissed, and thereafter, and from term to term since, has continued said action upon the application of plaintiff therein, and without the consent of the relator. On November 18, 1898, Conway's attorneys tendered an inadequate amount as costs, which was refused by relator's attorneys. Upon these facts, which are not substantially changed by the return, an alternative writ of mandamus was issued, to which return has been made.Fish, Cary, Upham & Black, for relator.

Miller, Noyes, Miller & Wahl, for respondent.

DODGE, J. (after stating the facts).

The statute (section 3072) is an imperative and mandatory one, and commands that if the defeated party, upon a reversal and direction by this court of a new trial, shall fail to pay the costs upon such reversal, to procure the record in said cause to be remitted to the trial court, or to bring the case to trial within one year after such reversal, unless the same be continued for cause, the complaint shall be dismissed. If each of these three steps are not complied with, the statute must be obeyed. “Lex ita scripta est.” Christianson v. Furniture Co., 101 Wis. 343, 346, 77 N. W. 174, 917. Doubtless the prevailing appellant may waive any or all of these requirements, but waiver should not be predicated upon ambiguous acts, which fail to evince such an intention on his part or which have not misled the other party into nonaction. It is contended here that such waiver was accomplished by the consent that the case should not be taken up for trial earlier than the 2d of November, 1898,--a day beyond the year. This consent was given some 20 days before the year had expired. What efficacy it may have had to waive the requirement that the action be brought to trial within the year we need not...