120 Wis. 390 | Wis. | 1904
“The time within which an appeal may be taken directly from an order is . . . limited to thirty days from the date of the service by either party upon the other of a copy of such order, with a written notice of the entry of the same.” Fee. 3042, Stats. 1898..
“It is only after written notice of the entry of an order tbat the statutory limitation of tbe time for appealing therefrom begins to run, and tbe facts tbat tbe orde#was served upon appellant’s attorney and tbat be filed exceptions thereto do not take the case out of tbe rule.” See, also, Fatt v. Fatt, 78 Wis. 633, 48 N. W. 52; Levine v. Barrett, 83 Minn 145, 85 N. W. 942, 87 N. W. 847.
Tbe theory of tbe statute and these adjudications is tbat tbe thirty-days limitation therein mentioned does not commence running against tbe one party until the other party has manifested an intention to set it in motion by serving tbe notice therein prescribed. Tbat was not done as to tbe order in question, and hence tbe plaintiff was not barred from appealing therefrom.
“Where a trial court has, in tbe exercise of a sound discretion in a given case, power to do or not to do a certain act, a refusal to exercise sucb discretion upon tbe expressed assumption that it has no sucb power is an error of law, which •eliminates from tbe case the question whether there was any abuse of discretion.” Smith v. Dragert, 61 Wis. 222, 21 N. W. 46, and cases there cited; Whitham v. Mappes, 89 Wis. 671, 62 N. W. 430; Binder v. McDonald, 106 Wis. 332, 82 N. W. 156.
This makes it unnecessary to consider the merits of tbe questions thus addressed'to tbe sound discretion of the trial court, but which that court refused to: determine for want •of “power or authority.” Certainly that court is in a much
By ihe Oourt. — The appeals from tho two orders of April 11, 1901, are both dismissed, and the appeal from the order of April 9, 1902, refusing to reinstate the appeal from the-county board, is reversed, and the .cause is remanded for further proceedings' according to law.