150 Wis. 336 | Wis. | 1912
Lead Opinion
The following opinion was filed May 14, 1912:
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
“. . . 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*340 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.
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.