97 Wis. 534 | Wis. | 1897
The contention arises out of a dispute between the appellant and the justice of the peace over the amount of fees to which the latter was entitled before he could be compelled to make a return. The whole difference between them was the sum of two dollars. The appellant clearly has the courage of his conviction. He pays his attorney, presumably, many times the sum in dispute, and takes the risks of the miscarriage of his suit. A more direct and less hazardous remedy seems to be ftirnished by sec. 3957, E. S. But the remedy by appeal seems to be more heroic. And the appellant seems to have a choice of remedies. If he has not chosen wisely, the misfortune is, at least, his own. But it scarcely seems to be worth the appellant’s while to be at such expense and risk to adjust so small a matter, when he 'had a more expeditious and inexpensive remedy at home. It may be doubted if the sport is worth the candle. Still, it may vindicate an important principle, ■even if it illustrates anew the uncertainties of the law.
Whether the order is appealable depends upon whether it is “ an order affecting a substantial right, made in any action, when such order, in effect, determines the action and prevents a judgment, from which an appeal might be taken.” Laws of 1895, ch. 212, sec. 1, subd. 1. That the order affects .a substantial right is clear. The right of appeal is an im
On the merits, there was no legal reason why the court should order the justice to make a return until he was in default in respect to his duty to make it. The statute gives him thirty days after the appeal is perfected in which to make his return. R. S. sec. 3763. Until the expiration of that time he is not in default, nor compellable to make a return. In this case the return was not due at the time when the court declined to compel it. It really seems that the order was strictly right. True, the justice had said that he would not make a return. But, non constat, that before too late he would not have thought better of it. At least the statute gave him loous poenitentim.
It is not needful to inquire whether sufficient fees were
By the Court.— The order of the county court of Fond du Lac county is affirmed.