Hardwick v. Estate of Duchaine, 32 Wis. 155

Hardwick v. Estate of Duchaine

32 Wis. 155 | Wis. | 1873

Cole, J.

This was an appeal from the decision and report of commissioners appointed to decide upon claims against the estate of Oliver Duchaine. The claim presented by the appellant was disallowed by the commissioners, and an appeal was taken under the provisions of ch. 101, R. S. The appeal was dismissed on motion in the circuit court, on the ground that that court never acquired jurisdiction.

Upon the record returned to this court, we are unable to discover any irregularity in the method of taking the appeal. The party seems to have conformed to the statute upon the subject. It is said that by sec. 21, ch. 101, it was essential to the validity of the appeal, that a bond should be given to the adverse party, with sufficient surety to be approved by the judge of the county court, conditioned that the person tak*158ing the appeal 'would prosecute it to effect and pay all damages and costs which might be awarded against him; and that it does not appear from the return made to the circuit court that such a bond was given. Such a bond was doubtless necessary in order to perfect the appeal; but the difficulty is, we have no evidence before us to warrant the assumption that the proper bond was not given. We do not understand that the bond constitutes any part of the record required to be filed in the circuit court. The 24th section regulates the practice upon this subject, and provides that “the party appealing shall procure and file in the circuit court to which the appeal is taken, at or before the next term of such court after the appeal is allowed, a certified copy of the record of the allowance or dis-allowance appealed from, of the application for the appeal and the allowance of the same, together with proper evidence that notice has been given to the adverse party according to the order of the county court.” This section prescribes what the record shall contain; and the one before us seems to be complete in the particulars specified. It is said that the bond should be sent up with the record, in order that the circuit court may see that the appeal is properly taken and allowed. But we do not think the statute contemplates that the bond shall be returned with the record to the circuit court, and the presumption doubtless would be, in the absence of all proof to the contrary, that a proper bond had been filed in the office of the county court before the appeal was allowed. The provisions in regard to appeals from the decisions of commissioners are somewhat different from those regulating appeals from orders and decisions of the county judge under ch. 117, sections 25 et seq., as an examination of the statute will show.

But again, it is said that even if it were not necessary that the bond should form a part of the record certified to the circuit court, it must be presumed that that court had satisfactory evidence before it, by affidavit or otherwise, that no sufficient bond had been given, or it would not have dismissed the ap*159peal. But we do not see how any such presumption can he indulged in, in view of the provision which makes it the duty of the clerk to transmit to this court the original papers used by each party on the application for the order appealed from. Section 5, ch. 264, Laws of 1860. If there was any evidence before the circuit court of the nature suggested, it would doubtless have been found in the record sent to this court. Nothing of the kind appears in this record, and we cannot therefore presume that any such evidence was used in the circuit court upon making the order dismissing the appeal.

By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.