Washburn v. Milwaukee & L. W. R. Co.

• Decision Date: 29 January 1884
• Citation: 18 N.W. 431,59 Wis. 379
• Parties: WASHBURN v. MILWAUKEE & L. W. R. CO.
• Court: Wisconsin Supreme Court

59 Wis. 379

18 N.W. 431

WASHBURN

v.MILWAUKEE & L. W. R. CO.

Supreme Court of Wisconsin.

Filed January 29, 1884.

Appeal from circuit court, Winnebago county.

Gabe Bouck, for appellant, G. W. Washburn.

J. G. Flanders and Howard Morris, for respondent, Milwaukee & L. W. R. Co.

TAYLOR, J.

This is an appeal from an order of the circuit court dismissing the appellant's appeal to that court from the award of commissioners appointed on the petition of the respondent railroad company to assess the damages for taking a certain tract of land for the purposes of such railroad. In the proceeding to assess the damages, Jackson, James, Stille, and the appellant, Washburn, were made parties as having an interest in the lands taken by the company. The award of the commissioners from which Washburn appealed does not undertake to determine the interest or estate which each of said parties had in said land, but awards a gross sum of $1,350 as compensation for the interests in the lands taken. From this award the appellant, Washburn, appealed to the circuit court. The other parties, Jackson, James, and Stille, did not appeal. The railroad company also appealed from the whole of the award, to the circuit court. After both appeals had been perfected in the circuit court, the railroad company made a motion to dismiss the appeal of Washburn, founded upon an affidavit made by the attorney of the railroad company, setting forth the award and alleging, upon information and belief, that the appellant, Washburn, and Jackson were the owners of all the premises taken, each owning an undivided half thereof, and that the only interest of James and Stille was an undivided quarter interest in a portion of the premises subject to the tax deeds under and by virtue of which the said Washburn and Jackson claimed title to said lands; and further alleges that neither Jackson, James, or Stille joined in the appeal taken from the award by Washburn. Upon the hearing of the motion to dismiss the appeal, the appellant, Washburn, made an affidavit setting forth, upon information and belief, that since the making of the award the said James, Stille, and Jackson had conveyed their interest in the lands for which damages had been awarded to one Howard Morris, who was the attorney of said railroad company, and who took said conveyances for the benefit of the railroad company, which paid the whole consideration for such conveyances. Upon the hearing of the motion upon the papers in the case and the said affidavits, the circuit court ordered that the appellant, Washburn, make Howard Morris a party to his action upon his appeal; and because the attorney for said Washburn in open court refused to make said Morris a party to his action, the court ordered his appeal dismissed with costs; and from this order he appeals to this court.

The only ground upon which it is possible to sustain the order made by the circuit court is, that Morris was a necessary party to the hearing upon the appeal of Washburn in the circuit court, and that it was the duty of Washburn to make him a party to his action in some manner. We think the circuit court erred in so holding, for several reasons:

First. The interest of Morris in the property, if he had any, was acquired pendente lite, and subsequent to the time when Washburn had perfected his appeal from the award of the commissioners; and in such case, if the railroad company deemed the presence of the party to whom the title had been transferred by the other parties to the condemnation proceedings necessary to protect their rights, it may be the company would have had the right, under the provisions of section 2801, Rev. St. 1878, to have obtained an order from the court, making him a party to the proceedings, but the court would have no power, under said section, to compel the appellant, Washburn, to make him such party.

Second. The only evidence before the court which showed that Morris had any interest in the premises, just as conclusively showed that the interest he held was held, in fact, for the benefit of the railroad company. It was...