37 Wis. 617 | Wis. | 1875
This appeal was submitted on briefs. The respondent claimed that there was no proper return of the appeal, and moved that it be dismissed.
Upon inspection, we found the notice of appeal with affidavit of service, and the undertaking witb affidavit of justification, attached together, with a certificate of the clerk below annexed, dated in December last, that the papers to which the certificate was annexed were the papers in the cause, and the whole thereof, and were transmitted to this court in pursuance of the appeal; and in the same envelop, a number of loose papers apparently in the cause below.
It was apparent that the certificate was not in proper form, and was on its face incorrect and unreliable; and that there was a failure to comply with the statute. Best v. Young, 6 Wis., 67; Omro v. Ward, 19 id., 232; Shewey v. Manning, 14 id., 448.
But as the difficulty seemed to be in the misprision of the clerk below, we thought it right to give the appellant opportunity to correct it. An order was accordingly made in May last, that the appeal be dismissed, unless the appellant cause a proper return to be made within a time specified, now passed.
Thereupon, as we are informed by the clerk of this court, the papers all went down, and were again returned here in May last. They are now all attached together with the old certificate of December last, without any new or corrected certificate of the clerk below. The certificate is identified by the original filing in this court.
It could hardly be expected that we should accept a certificate as verifying a return under our order of May last, signed and sealed months before the order was made, or as authenticating papers attached to it which we have judi
There is a great deal of looseness in making returns to appeals, which causes much trouble here. Attorneys, taking appeals, should see that the returns comply with the statutes and rules governing them. In the present case, we could do no more than give the appellant opportunity to correct the mistake; and, under the order of May last, have no discretion left.
By the Court.— The appeal is dismissed for want of a proper return.