Bremer v. Kœnig

5 Wis. 156 | Wis. | 1856

By the Court,

Cole, J.

The only point relied upon by the counsel for the defendant in error, to sustain the ruling of the Circuit Court in dismissing tbe appeal, is tbe insufficiency of tbe affidavit for the appeal. We presume tbe other grounds assigned in his motion in tbe court below, are no longer considered tenable, and are, therefore, abandoned. Certainly the cases of Edson vs. Countryman (1 Wis. 172); Kirkpatrick vs. McCormick (2 id. 284), are decidedly against him upon the first point in his motion : while the observation that the recognizance given was in all respects in strict compliance with sec. 229, chap. 88, R. S., would seem to furnish a sufficient answer to his second objection.

We have then, only to inquire, whether the affidavit for the appeal is such as the statute requires. To entitle a party to an appeal, Rev. Stat. subd. 1, sec. 228, provides that, “ the appellant, or some person for him, must make an affidavit, stating that the appeal is made in good faith, and not for the purpose of delay,” &c.

It is contended that the affidavit contemplated by this provision must be regularly entitled, and in the court in which it is made or to be used, and that it must be sufficient without reference to any other paper in the cause. In the present case the affidavit was drawn at the foot of the recognizance for the appeal and was in the following words:

“ State of Wisconsin, Dane County, ss.: — Christian Bremer being duly sworn, says, that the appeal from the judgment mentioned in the above and foregoing recognizance is made in good faith, and not for the purpose of delay, and further saith not. (Signed,) Christian Bremer;” with a proper jurat.

It is to be observed that the recognizance names the parties and the justice who rendered the judgment, and that the affidavit refers to the judgment mentioned in the recognizance. We are, therefore, of the opinion that the affidavit is good by relation to the recognizance, though not itself entitled (4 Hill R. 596 ; Kearney vs. Andrews, ante 28, decided this present term), and that if false, perjury might be assigned upon it. 3 Harris R. 490. See case of Kearney vs. Andrews, decided this term, ante 23.

The judgment of the Circuit Court is therefore reversed, and the cause remanded for further proceedings according to law.