61 Wis. 224 | Wis. | 1884
These are cross-appeals by the parties from portions of the same order. The action is ejectment. The cause was tried by the court without a jury, and a judgment of nonsuit was rendered on the 19th day of September, 1882. In December, 1882, the plaintiff moved for a new trial under the statute. The motion was granted on condition
As to the first portion of the order, we are entirely clear that the first undertaking, though it was not signed by the plaintiff, was sufficient, and answered all the purposes of the statute. It is true, the provision is that the applicant “ execute and file an undertaking,” etc., making a verbal change in the law as it stood in sec. 20, ch. 141, 2 Tay. Stats. But we do not think the legislature intended by this slight change in the verbiage of the statute to change the law upon the subject, and make it necessary for the applicant himself to execute the undertaking. The plain object of this provision, requiring an undertaking to be given, is security of the other party on granting a new trial; and, as observed
But the learned counsel for the defendants insists that the plaintiff could not have a new trial under the statute because there was a judgment of nonsuit. But that judgment was rendered after a trial by the court upon the merits, and should have the same effect as if the case had been tried by a jury. We have no doubt but the statute extends to the case, and that a new trial should be granted upon a proper application, upon the payment of the costs and giving the requisite undertaking. The statutory right to a second trial in this action is given upon the theory that the defeated party should be afforded another opportunity to supply any defects in his title as first exhibited, and especially to enable him to overcome his adversary’s title, of which he might be ignorant. The provision should have a fair, liberal construction, even if its wise purpose is sometimes perverted by unscrupulous litigants.
It seems to us that that part of the order which the plaintiff has appealed from does not affect any substantial right. He has already secured his new trial. We therefore think his appeal must be dismissed. That part of the order which the defendants have appealed from will be affirmed.
By the Court.— Ordered accordingly.