30 Wis. 549 | Wis. | 1872
A motion was made to dismiss tbe appeal herein before tbe cause was reached for argument. That motion not having been decided, tbe cause was submitted in its order on tbe calendar, but without prejudice to tbe motion to dismiss. This motion, therefore, is tbe first matter we have to consider.
Tbe ground of tbe motion is, that no proper undertaking has been executed and filed on tbe appeal. Tbe specific and only objection taken to tbe undertaking is, that there was no proper justification of tbe sureties therein. Tbe action was commenced in tbe circuit court of Milwaukee county, and tbe defendant and sureties reside at Whitewater, in Walworth county. Tbe sufficiency of tbe sureties was excepted to by tbe plaintiff, and thereupon after due notice thereof, tbe sureties attended and justified before tbe county judge of Jefferson county. It is claimed by the counsel making tbe motion, that tbe justification before that officer was wholly unauthorized.
Our statute provides that a party may except to the sufficiency of the sureties in an undertaking on appeal, within ten days after notice of the appeal, and that “ unless they or other sureties justify before a judge of the court below or a county judge, as' prescribed for the justification of bail in case of arrest, the appeal shall be regarded as if no undertaking bad been given. § 22, chap. 139, R. S., Taylor’s Ed., p. 1643. It
Tbe appeal is from an order denying the defendant’s motion to change the place of trial to Walworth county, where the defendant resided. Before the time for answering bad expired, and before issue joined in the action, the defendant served
By the Court. — Tbe order of tbe circuit court, refusing to change tbe place of trial, is reversed, and tbe cause is remanded with directions to grant tbe application.
bule adopted.
Whenever bail are required to justify, they shall justify within tbe county where tbe defendant shall have been arrested, or where tbe action is pending, or where tbe bail reside. This rule shall also apply to tbe justification of sureties in an undertaking on appeal or otherwise.