Cowles v. City of Neillsville

137 Wis. 384 | Wis. | 1909

WiNsnow, O. J.

Tbe defect in tbe notice of appeal, wbicb was beld to be fatal, was that tbe state was named as tbe plaintiff instead of tbe city. Tbe error was noticed by no one at tbe time and misled no one. Tbe justice knew perfectly well to-what judgment tbe notice was in fact directed. He made entry of tbe appeal, accepted tbe recognizance, and made bis return in due course as if tbe notice were perfect, as in fact be supposed it was. Tbe offense charged was tbe sale of intoxicating liquor to a minor, wbicb is an offense against tbe laws of tbe state as well as against tbe ordinances of tbe municipality, and bence tbe mistake in tbe title was a very natural one. Tbe question whether tbe defect was of so serious a character as to deprive tbe appellate court of jurisdiction must depend upon tbe construction given to tbe statute wbicb prescribes tbe notice to be given, viz., sec. 4761, Stats. (1898). This section provides that tbe appellant shall “give said justice notice thereof in writing within twenty-four hours.” Counsel have referred us to no cases construing this section and we have found none; bence we are not fettered by any previous adjudication on this subject. In support of the ruling of tbe trial court, reliance is placed upon tbe decisions of this court in relation to notices of appeal in civil cases beginning with Widner v. Wood, 19 Wis. 199. Tbe civil appeal statute (sec. 3754, Stats. 1898) requires tbe appellant to malee and present to tbe justice a notice of appeal. Tbe early decisions under this section, notably Widner v. Wood, supra, and Chinnock v. Stevens, 23 Wis. 396, laid down a rigid rule of nicety with regard to tbe notice of appeal wbicb hardly accords with the general principle that the right of appeal from inferior tribunals is favored in the law. While these cases have not been overruled it is certainly true that they have been seldom cited, and in the more recent cases the rule that there must be strict compliance with every detail of the statute has been much encroached upon, and the more sensible rule of substantial compliance adopted in its place. Under this latter rule it seems that inaccuracy or mistake in the description of the judgment appealed from will not invalidate the notice, if, notwithstanding such inaccuracy or mistake, the judgment intended is designated with reasonable certainty. Schweppe v. Wellauer, 76 Wis. 19, 45 N. W. 17; Friemark v. Rosenkrans, 81 Wis. 359, 51 N. W. 557; Noall v. Halonen, 84 Wis. 402, 54 N. W. 729; Hender v. Ring, 90 Wis. 358, 63 N. W. 282; Patrick v. Baldwin, 109 Wis. 342, 85 N. W. 214; Ladd v. Witte, 116 Wis. 35, 92 N. W. 365; Wattawa v. Jahnke, 116 Wis. 491, 93 N. W. 547. Under this more reasonable doctrine it seems at least doubtful whether the strict rule laid down in Widner v. Wood would now be adhered to.

However this may be, the present case involves the construction of an entirely different statute, which does not require the making and presentation of a notice (carrying the idea of a somewhat formal, legal document), but only that the appellant shall give the justice notice in writing. The appellant is to give the justice notice in writing of his appeal. That is all. Doubtless it was not expected that there should be great formality observed. The notice must be given at once, and not at any time within twenty days as in civil cases. The defendant might often be obliged to prepare it himself, without the aid of counsel, in order not to lose his right. These and other considerations which might be named seem to preclude the idea that any very formal document was intended, but rather that there should be given to the justice some written paper, which, though informal, sufficiently gave knowledge to the justice that an appeal was taken and in what case it was taken. Such knowledge was .given to the police justice in the present case, notwithstanding the unnoticed error in the title of the cause. There was •evidently no doubt or uncertainty in his mind as to the case in which the appeal was taken. Indeed, the body of the notice gave the date of the judgment, its amount, and its provision for imprisonment in default of payment in exact terms, so that it could not be mistaken as intended to apply to any other case.

Under these circumstances we hold that the call of the statute was satisfied notwithstanding the erroneous title. As matter of fact, the justice received notice in writing from the appellant of his appeal and acted upon it.

By the Court. — Judgment reversed, and action remanded for further proceedings according to law.