| Wis. | Mar 14, 1882
In this case judgment for the defendant was duly rendered on the 5th of September, 1879. The costs were taxed on that day and inserted in the judgment. A written notice of the entry of such judgment was also served on the plaintiff’s attorneys on the 15th of that month. No steps were taken to settle a bill of exceptions until the 3d day of September, 1881, when, on application, founded upon affidavits at- . tempting to excuse the delay, a court commissioner,granted an order that the plaintiff have thirty days from that date within which to serve and settle a bill of exceptions. On the 6th of September, 1881, the circuit court denied the motion of the defendant to set aside this order of the commissioner, and made an order confirming the same. From the last order this appeal is taken.
In limine the learned counsel for the plaintiff objects that the order of the circuit court is not appealable, for the reason that it does not affect any substantial right within the meaning of subdivision 2, sec. 3069, R. S. The case of Wood v. Blythe, 42 Wis., 300" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/wood-v-blythe-6602297?utm_source=webapp" opinion_id="6602297">42 Wis., 300, is relied on in support of this position. But that case in its facts is quite unlike the one at bar; so much so as to render the decision there'made inapplicable. There a judgment was rendered for the plaintiff on the 29th of July, 1876. On the 13th of December following a court commissioner, on an ex parte application, enlarged the time thirty days for settling the bill of exceptions. This order the circuit court set aside as being illegal and void. On appeal froni the order of the circuit court, this court treated the case as though the order made by the commissioner had been made by the court itself. The head-note states the decision of the court correctly in the following language: “An order of the circuit
In the Sambs Case judgment was perfected in favor of the plaintiff, who died soon after. It was held that, as the time for the defendant to appeal from the judgment began to run in the lifetime of the plaintiff, it was absolutely barred in two years, notwithstanding the death of such plaintiff before the expiration of that period,'and that during a portion of the time for appealing there was no adverse party in existence upon whom notice of appeal could be served. See also Jarvis v. Hamilton, 37 Wis., 87" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/jarvis-v-hamilton-6601700?utm_source=webapp" opinion_id="6601700">37 Wis., 87; Leadbetter v. Laird, 45 Wis., 522" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/leadbetter-v-laird-6602713?utm_source=webapp" opinion_id="6602713">45 Wis., 522. It would certainly be an anomaly in the law if the right to enlarge the time for settling a bill of exceptions should survive the right of appeal itself. We think the statute involves no such absurdity. We therefore hold that when the time for appealing has expired, the circuit court loses all power to enlarge the time for settling the bill of exceptions in the case. The question then arises, whether an order which attempts to enlarge the time for settling tlie bill of exceptions, and which the court has no power whatever to make, does not affect a substantial right so as to be appealable under the statute.
The conclusion which we have reached is, that the order of the circuit court appealed from must be reversed, and the cause be remanded with directions to vacate the order of the commissioner above referred to.
By the Court.— So ordered.