Fred Miller Brewing Co. v. City of Milwaukee

150 Wis. 336 | Wis. | 1912

Lead Opinion

The following opinion was filed May 14, 1912:

KeRWOT, J.

Oh. 549, Laws of 1909, as amended by ch. 425, Laws of 1911, regulates the procedure in the civil courts of Milwaukee county. The record in this case shows that the plaintiff, in attempting to appeal from the judgment of the civil court to the circuit court, served a notice of appeal and affidavit that the appeal was made in good faith and not for the purpose of delay upon the clerk of the civil court, but served neither upon the judge of said court. The question, therefore, arises whether any appeal was ever taken from the judgment of the civil court. We find no provision of law authorizing such appeal without service upon the judge of the civil court. On the contrary, it seems that service upon the judge of the civil court is necessary under the statute. Subd. 1 of sec. 14, ch. 549, Laws of 1909, as amended, provides that all “proceedings in said civil court and in appeals therefrom shall, except as herein otherwise provided, be governed by the provisions of title XXVIII of the statutes, as amended, relating to courts of justice of the peace and proceedings therein in civil cases. . . . The following sections of the statutes are hereby declared to be inapplicable to said court or the proceedings therein: Secs. 3569, 3584 to 3592, inclusive; 3598, 3616, 3611, 3623, 3638, 3666, 3661, 3116, and 3776.” Subd. 2 of the same section and chapter as amended provides that in actions and proceedings specified in sees. 3572 and 3573, Stats., commenced in said court, where the amount involved shall exceed the sum of $200, except actions of forcible entry and detainer, “the practice, pleadings, trials, judgments and proceedings thereafter shall be governed by the provisions of law relating to circuit couifis and proceedings therein; except that the time in which any proceeding shall be had shall be governed by the provisions of this act and of said title XXVIII so far as applicable. . . .” The “proceedings thereafter” refer to proceedings on the judgment in the civil court and do not include appeals from the judgment. Proceedings after judgment, under this provision of the statute, have reference to proceedings for the enforcement of the judgment or in conformity with the judgment, not in hostility to it, while proceedings upon appeal have reference to proceedings adverse to the judgment. This becomes apparent when read in connection with subd. 1 of sec. 28, ch. 549, Laws of 1909, as amended, which provides:

“. . . Except in bastardy cases, and except as herein otherwise provided, an appeal may be taken to the circuit court of Milwaukee county by any party to an action or proceeding in said civil court from any final judgment of said civil court, or from any order of said civil court from which an appeal to the supreme court might be taken if such order were made by a circuit court. ■ Such appeals shall be taken within twenty days after the entry of the judgment or order appealed from, and the returns and amended returns upon such appeals shall be made by the clerk of said civil court in tlie manner provided in ch. 160 of the statutes, relating to appeals from justices’ courts. . .

Also the following portion of subd. 5 of sec. 28 of said ch. 549:

“The proceedings upon any appeal from any judgment or order of the civil court, except as herein otherwise provided, shall be governed by the provisions of ch. 160 of the statutes relating to appeals from justices’ courts and judgments of justices of the peace so far as such provisions may be applicable thereto.”

As to the questions reviewable on appeal see Eder v. Grifka, 149 Wis. 607, 136 N. W. 154.

We think the provisions of the statutes referred to leave appeals from the civil to the circuit court governed by the statutes relating to appeals from courts of justices of the peace, except that in appeals from judgments of the civil court the returns and amended returns upon appeal shall be made by the clerk; but that the notice of appeal and affidavit must be served upon the civil judge. This was not done in the case at bar, therefore no appeal was taken, and the circuit court was without jurisdiction to make the order ^appealed from.

No other questions need be considered.

By the Court. — The order appealed from is reversed.

Timlin, J., took no part.

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Rehearing

The respondent moved for a rehearing.

In support of the motion there was a brief by E. J. Ludwig, attorney for respondent, and J. O. Carbys, Nath. Peroles & Sons, Rodger M. Trump, and Moritz Wittig, of counsel; also a brief by Quarles, Spence & Quarles, Charles 8. Thompson, and Irving A. Fish, amici curiae.

In opposition to the motion there was a brief by Daniel W. Hoan, city attorney, W. H. Timlin, Jr., first assistant city attorney, and Otto Breidenbach, assistant city attorney.

The motion was denied October 8,1912.