68 Wis. 220 | Wis. | 1887
A motion was made to dismiss the appeal herein, which has been decided, but no opinion was given on the motion. It is thought advisable to state here onr views upon the question of practice involved in the motion. The ground of the motion was that no notice of appeal such as is required by law was ever served. After entitling the cause, the notice states “ that the defendant appeals to the supreme court from the order of the circuit court entered on the 26th-day of July, 1886, in the above-entitled cause.” The objection to this notice is that it fails to state whether the appeal is from the whole or some part of the order. The statute requires a notice in writing to be served on-the adverse party and on the clerk of the court in which the judgment or order appealed from is entered, “ stating the appeal from the same, and whether the appeal is from the whole or some part thereof; and if from a part only, specifying the part appealed from.” See. 3049, R. S. Now, when a party appeals from an entire order or judgment, it
The order appealed from in this case directed that the recital contained in the notice of sale of land on execution, referred to in the opinion of this court (66 Wis. 119), to the effect that a return of the property could not be had, be quashed and stricken out; also that the return of the sheriff on the back of the execution be corrected by striking therefrom the word “ unsatisfied.”
The sheriff was not a party to this proceeding, nor did he ask that his return be corrected because it was false or not according to the real facts'; and. the counsel for the appellant insists that the court had no power whatever to quash the return made on the execution by the sheriff, with
Considering then the case upon the merits, as was done in the court below, the inquiry is, Do the affidavits and testimony taken before the referee justify the conclusion that the property adjudged to the appellant could not be returned to him ? Eor unless substantially the same railroad ties, fence posts, and telegraph poles which were taken from him on the writ of replevin could be returned or tendered, the word “ unsatisfied ” should not have been stricken from the back of the execution. This is very obvious. What then are the facts in regard to that matter ? There is considerable contradiction in the statements of the witnesses who were examined, and in the affidavits used on both sides, on the hearing of the rule to show cause. But to our minds the decided weight of testimony clearly proves that the identical property taken from the appellant and delivered to the plaintiffs, was not found and could not be returned. Of course, it was incumbent upon the plaintiffs to show that a return of the property could be had, and that a tender of it was made. The property was
But this evidence was met and overcome by an overwhelming mass of testimony that a large portion of the ties and posts seized by the sheriff was not tendered, but that ties and posts of an inferior grade and quality were tendered and offered to be returned. Aside from the sworn statements of the appellant, which are direct and positive on the point, there is the testimony of six or seven credible witnesses who worked for the appellant, chopped the ties, posts, and poles, or who hauled them to the slough, and who swear as to the character and quality of the timber cut and hauled. The fact is conclusively established by these witnesses that the ties, posts, and poles chopped, sawed, and hauled were mostly manufactured from green trees, contained but a small percentage of culls, and were of a good quality and merchantable. The fact was proven beyond successful contradiction that a large portion of the ties, posts, and poles piled on the bank of the slough was, to use the words of one of plaintiff’s witnesses (Tellofson), “ poor stuff; looked poorer than any large lot of stuff I ever saw gotten out by anybody. Much of it looked like the leavings of an old banking ground.” This is the character of the timber which was offered to be returned. The appellant does not deny but that some of the ties and posts piled at that place w.ere taken from his possession, but he says that these were so intermixed with worthless stuff and
Now, in the light of all this evidence, it is impossible to say there was anything untrue or false in the return. The court below therefore erred in amending it and ordering that the word “ unsatisfied ” be stricken from the back of the execution; for no one would claim that the execution could be satisfied by tendering'other timber of an inferior quality from that actually seized on the writ of replevin. So, assuming that the court on á proper showing had power to order the return of the officer to be amended, it is obvious that no amendment should have been made upon the facts disclosed in the testimony.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.