Haentze v. Howe

28 Wis. 293 | Wis. | 1871

Dixoít, C. J.

The appeal in this case from the judgment of the justice was dismissed in the court below upon the mistaken supposition that the provisions of chapter 112, Laws of 1859, governed; whereas it was an appeal duly taken in pursuance of sec. 205, oh. 120, R. S. Chapter 112, Laws of 1859, makes certain regulations designed for the benefit and protection of the losing party in a replevin suit tried before a justice of the peace, where such party desires to appeal, and at the same time wishes to prevent the property in controversy from passing into the possession or under the control of the successful party to the judgment, unless the successful party gives security for a return thereof in case the judgment shall be in whole or part reversed on the appeal. The act might have been much more clearly and perspicuously drawn, and'in fewer words, but such was the object chiefly intended to be accomplished by it. This is apparent from the provisions of the second section. The provisions of the third and fourth sections, if the language is to be literally taken and construed, are incongruous and faulty in the extreme. The third section provides that if, at the expiration of the time for appeal, the appeal has been perfected and the successful party has not filed his recognizance, as provided by the act, then such property shall be delivered to the party bringing the appeal. The fourth section declares that if the property mentioned in such order has been delivered to the appellant, the appeal shall not be effectual for any purpose unless, within the time for taking the appeal, the appellant shall file his undertaking, etc., conditioned that if judgment be rendered against him by the appellate court, he will pay such judgment, together with all costs, damages and disbursements recovered against him, and abide such other or further order or judgment as the court may make in the premises. Literally construed, these sections seem to authorize or require a delivery of the property to the losing party who has made and filed the affidavit prescribed by section 2, before such party has taken an appeal which shall be effectual for any „ purpose, or in advance of the making and filing of the written undertaking on his part required by section 4, upon which the validity of Ms appeal wholly depends. Snob, is tbe inference from tbe words in tbe beginning of section four, “if tbe property mentioned in tbe order bas been delivereds to tbe appellant, tbe appeal shall not be effectual for any purpose,” etc.; and likewise tbe literal interpretation of section 8, unless it is changed or obviated by tbe provision there made that tbe property is to be delivered to tbe appellant “at tbe expiration of tbe. time for appeal.” It is manifest from tbe entire scope and object of tbe statute, as well as from tbe nature of tbe case, that tbe legislature did not and could not have intended that tbe property should not only be withheld from tbe successful party to tbe suit, , but that it should in fact be delivered over to tbe losing party, without any appeal lawfully or properly taken by Mm, and without any security on bis part for its return. Tbe injustice and danger of such a proceeding is too manifest to admit of doubt that tbe legislature could not have intended it. Tbe provision, therefore, that tbe property is not to be delivered to tbe appellant until tbe time for appealing bas expired, may be reasonably understood as implying a condition that it is not then to be delivered to him unless be bas made and filed tbe undertaking prescribed by section four. Such was obviously tbe intention of tbe legislature, and, as it is our duty to give effect to tbe intent rather than tbe letter of a statute, where tbe intent is manifest, tbe act should doubtless receive this construction. “ Words of a statute ought not to be interpreted to destroy natural justice,” Rawson v. Bargue, Style’s R., 81. “Where words per se are repugnant and very absurd, what is necessary may be supplied by reasonable in-tendment and good construction.” Dwarris on Statutes, 726. And see same author and authorities' cited, 725, 826.

• Tbe court below dismissed tbe appeal because tbe undertaking prescribed by section four bad not been given. Literally construed that section declares that tbe appeal shall not be effectual for any purpose, only in cases where tbe property in suit bas been delivered to tbe appellant. If tbe property bas not been delivered to him, his appeal is valid without the undertaking therein provided for. In this case the property was not delivered to the appellant, and so the appeal should not have been dismissed. But, as observed at the outset, the appellant did not resort to the special proceedings prescribed by chapter 112 at all. It was optional with him to do so or not, as he saw fit. He did not make the affidavit provided for by section two, and the property was delivered to the respondent, the successful party before the justice, in the ordinary course of proceeding. The appeal was taken in pursuance of the general statute, and as such was good. The order dismissing it must be reversed, and the cause remanded for further proceedings according to law.

By the Court — It is so ordered