Larson v. Superior Short Line Railway Co.

| Wis. | Sep 22, 1885

Taylor, J.

It is claimed by the learned counsel that the appeal should have been dismissed “ (1) because it was an attempt to base four separate and distinct actions upon one process; (2) because the appeal is bad for duplicity, in that it attempts to take up four separate and distinct judgments by one appeal; (3) the appeal is bad for uncertainty, in that it fails to state the subject matter appealed from, and is misleading.”

The first and second objections relate to the joinder of the several separate owners of the lands and of the damages awarded therefor in the notice of appeal. It is, perhaps, a little out of the ordinary way of taking appeals in such cases to join separate owners as appellants in the same notice; but when the notice on its face shows that each party gives the notice separately and on his own behalf, and not in behalf of another, there does not appear to be any grave objection to such notice. Certainly each of the parties whose name is to the notice, gives the notice required by sec. 1819, R. S. It is a written notice of appeal, which the clerk of the court and the company can understand as well as though four separate notices had been made out and filed with the clerk.

It is not strictly correct to say that this notice of appeal is the commencement of an action in the circuit court by each appellant against the railway company. The statute does, not say so, and it is not so in fact. The parties are already in court before any appeal is taken, by reason of the proceedings before had on the petition of the company. On fifing the award of the commissioners, each separate award has the effect of a judgment in favor of the owner of the-lands against the railway company; and if the company fails to pay the amount so awarded, the owner may have execution thereon against the company for the amount so-awarded. See sec. 1850, R. S. 1818. The notice to be filed with the clerk is not a process to bring the parties into court, for they are already there. Its sole object is to advise the. opposite party that the party giving the notice is not satisfied with the award of compensation and damages made by the commissioners, and desires to have a new award made by a jury and the court. When such notice is given, the statute says, “ The appeal shall be considered an action pending in court,” etc., not an action commenced in such court. The original petition filed by the railway company, asking for the appointment of commissioners to fix the compensation and damages which it shall be compelled to pay in order to take the desired lands, is the commencement of an action against all the owners of the lands desired by the company. In that action the company is the plaintiff, and all the owners the defendants (see sec. 1841, R. S.), and the award of the commissioners has the effect of a judgment against the company in favor of each separate owner. Sec. 1850, R. S.

The strict rule which applies to appeals from the judgments of one court to a higher or appellate court should not apply to a case of this kind, when the case is already in the court, and where a new trial is sought to be had in the same court. We think the notice was sufficient, and that the clerk of the circuit court was right in entering in his docket an action in favor of each of the appellants against the railway company.

There does not appear to be any great force in the other objection that the notice of appeal is not sufficiently certain, because the award shows that Lawson was awarded damages for taking parts of separate and distinct parcels of land. We think it would be intolerable and unjust to require the owner of a dozen or more separate lots, parts of which are taken by the company, to bring a separate appeal for each lot, and if he could and should do so, it is very clear the court would direct but one trial for all the damages claimed. See Washburn v. M. & L. W. R. Co. 59 Wis. 364" court="Wis." date_filed="1884-01-29" href="https://app.midpage.ai/document/washburn-v-milwaukee--lake-winnebago-railroad-6604286?utm_source=webapp" opinion_id="6604286">59 Wis. 364, 378. The notice of appeal in this case is sufficiently certain. It is an appeal from the award made to him by the commissioners for all the lands taken by the company which are described as owned by the plaintiff in such award, and, so far as the record is concerned, it does not appear that the respondent makes any claim for damages except as to those lots which are described as his in the petition, and for the talcing of which he was awarded damages by the commissioners.

We think there was no error in refusing to dismiss the appeal of the respondent in this case.

By the Gowrt. — The order of the circuit court is affirmed.