Harrison Machine Works v. Hosig

73 Wis. 184 | Wis. | 1888

Oassooay, J.

The plaintiff is a corporation organized under the laws of Illinois. It is therefore a foreign corporation, within the meaning of our statute. Sec. 2943, R. S. In such a case, the defendant may require such plaintiff to file security for costs. Ibid. The defendant did make proof by affidavit of such fact entitling him to such security, and the trial court thereupon ordered the same, as required by statute. Sec. 2945, R. S. The plaintiff failed to file such security as thus required, notwithstanding the time for doing so'had. twice been extended. There was no appeal from that order, and we must therefore assume it was properly made, even if the security was given as required on the attachment proceedings. Sec. 2932, R. S. The plaintiff having failed to file such undertaking as thus required, the defendant thereupon became entitled, upon motion, to have the plaintiff’s action dismissed by the court. Sec. 2946, R. S. January 30, 1888, the defendant moved the court, upon an affidavit showing such default, for an order dismissing the action, and for judgment for damages, costs, and disbursements. That motion was wholly denied, with costs, by order Uo. 1, appealed from. It is said that that motion was denied by reason of a pen-mark having been drawn through the word “ dismissing ” in the copy served of the order to show cause. Such ground for refusal would seem to be too finical for the practical proceedings in courts of justice, where special regard is supposed to be had to the substance of things rather than mere verbal expressions. The purpose' of the motion would seem to have been' sufficiently manifest, and it should have been granted, at least to the extent of dismissing the action.

To that extent the same motion, on being renewed February 7, 1888, was in effect granted. It appears that on the decision of that motion the attorney of each party drew up an order and induced the court to sign the same. The substance of each of those orders is stated above, and there respective^ designated as Order Ho. 2 and Order Ho. 3. But each of those orders granted the defendant’s motion so far as to dismiss the action; and of course costs and disbursements would naturally follow as an incident, but were not allowed. Upon such dismissal of the action it became the duty of the court, on the request of the defendant, to impanel a jury to assess such damages, if any, as he had sustained by reason of the taking and detention of the property attached, or by reason of any injury thereto, in order to have such damages included in the judgment to be entered. Sec. 2747, E. S. It would seem that the defendant had no other remedy. Ashland Co. v. Stahl, 48 Wis. 593. Order Ho. 3 recites the issuance of. the attachment, the sheriff’s return showing the seizure and holding of the property attached, the defendant’s request to have such jury impaneled to assess such damages, and his motion for judgment. There seems to be no substantial reason for denying such request. The statute cited secured such assessment to the defendant as a matter of right upon the showing made. So the defendant was entitled to his motion for judgment of dismissal with costs and disbursements, and for such damages, if any, as should be so assessed. Such judgment would be entered after tbe assessment; or before, leaving a blank for such damages when so assessed. It is true such order to show cause upon which orders ETos. 2 and 3 were made contains no request for such impaneling of a jury, but, when the court announced its decision in favor of dismissal, the defendant became entitled to the impaneling of such jury upon simple request, which appears to have been made. It is true that in each of the orders to show cause the defendant moves for “ judgment for his damages ” as a part of such motion, and the same was denied in orders ETos. 1 and 2, respectively. The defendant was not entitled to judgment for such damages as a part of such motion, but only upon their being assessed by such jury as incident to such dismissal.

The defendant has taken an appeal from said orders ETos. 1 and 3 in one notice and undertaking, and a separate appeal from said order No. 2. We think each of these several orders was appealable. Sec. 3069, R. S. Each was made in an action and affected a substantial right, within the meaning of the statute. Ibid. The mere taking of the one did not waive the right to take the other. But since the act to simplify appeals authorizes a party to embrace two or more orders in one notice of appeal and one undertaking, it is obviously not the policy of the statute to allow him to increase his costs by bringing separate appeals. Sec. 3052, R. S.; ch. 49, Laws of 1883. Especially is this so where, as here, all the orders relate substantially to the same proceeding. , The case must therefore be treated the same as though all three orders were embraced in the first appeal.

By the Court.— The motions to dismiss the appeals are denied, with $10 costs. Order ETo. 1 is wholly reversed. Order ETo. 2 is reversed in so far as it denied the defendant’s motion for 'judgment with costs and disbursements, and in so far as i't may be implied therefrom that the defendant is to have no damages in any event. Order No. 3 is reversed in so far as it denied the defendant’s request to have a jury impaneled to assess such damages, and in so far as it refused the defendant’s motion for judgment with costs and disbursements. In so far as orders Nos. 2 and 3, respectively, dismiss the action, the same are affirmed. The defendant is only allowed such costs in this action, in this court, as are taxable on the first appeal. Sec. 2, ch. 49, Laws of 1883. The cause is remanded for further proceedings according to law.