Whitham v. Mappes

• Decision Date: 05 March 1895
• Citation: 62 N.W. 430,89 Wis. 668
• Parties: WHITHAM v. MAPPES ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 668

62 N.W. 430

WHITHAM

v.MAPPES ET AL.

Supreme Court of Wisconsin.

March 5, 1895.

Appeal from circuit court, La Fayette county; George Clementson, Judge.

Action by Emmanuel Whitham against Lou Mappes and others. From a judgment of the circuit court dismissing an appeal from a judgment of a justice's court for defendants, plaintiff appeals. Reversed.

It appears from the record that this action was commenced before a justice of the peace, and judgment rendered therein against the plaintiff, and in favor of the defendants, July 25, 1890; that August 14, 1890, the plaintiff appealed to the circuit court; that August 27, 1890, the return of the justice was filed in the circuit court; that said cause was not noticed for trial, nor put upon the calendar, nor continued for cause, at the December term of said court for 1890; that said cause was noticed for trial at the regular January term for 1891, but the presiding judge of said circuit court, of his own motion, adjourned said court, without hearing any case; that, at the December term of said court for 1891, the plaintiff's attorney attempted, in good faith, to notice said cause for trial, but failed by reason of the miscarriage of the mail; that said cause was duly noticed for trial by the plaintiff for the June term of 1892, and was on the issue calendar of said court for that term; that the defendants at that term moved the court to dismiss said appeal, for the reason that the same had not been brought to a hearing before the end of the second term after the return of the justice had been filed, nor continued by special order or otherwise at either of the two terms of said court held since the filing of such return. Upon the hearing of that motion the court found that the facts stated were true; that the plaintiff had satisfactorily shown to the court that he had a meritoriouscause of action against the defendants, and had shown to the court a good and sufficient reason and excuse for not having brought said action to a hearing before the end of the said second term of said court, and for the reinstating and continuing of said cause in said court at said last-mentioned time; but, the court being of the opinion that it had no lawful power and authority to grant the relief asked for by the plaintiff after the end of the second term after the filing of said appeal, it was, therefore, July 8, 1892, ordered that said application be, and the same was thereby, denied, without costs. Thereupon judgment of dismissal of said appeal was entered accordingly against said plaintiff and his sureties in said action, and in favor of said defendants, with costs. From that judgment the plaintiff brings this appeal.

W. H. Beebe, for appellant.

Wilson & Martin, for respondents.

CASSODAY, J. (after stating the facts).

The statute provides that “if neither party shall bring the appeal to a hearing in the appellate court, before the end of the second term after filing the return of the justice therein, such court shall dismiss the appeal, unless it shall continue the same by special order for cause shown.” Rev. St. § 3766. The manifest purpose of this statute is to secure good faith in the taking of appeals in such petty cases by limiting the time for bringing them to a hearing in the appellate court, as a strict matter of legal right, to two terms after the filing of the return of the justice therein; but there is nothing in the section which imperatively requires that the cause must be actually determined and disposed of during the time so limited. On the contrary, the section expressly reserves to the appellate court authority to “continue the same by special order, for cause shown.” This court has repeatedly sanctioned the exercise of such reserved power by such appellate courts. Wilcox v. Holmes, 20 Wis. 307;Howe v. Elliott, 24 Wis. 677;Holt v. Coleman, 61 Wis. 426, 21 N. W. 297. “If, at the second term after a justice makes return to an...