Liesner v. Wanie

| Wis. | Feb 3, 1914

Maeshall, J.

Respondents’ counsel suggest the question of whether jurisdiction of the cause here is wanting because of failure to take the appeal within the two years limited therefor by serving the proper notice on the clerk of the circuit court', together with a proper undertaking and also filing the same with such clerk within such time.

The language of the section relied on is this:

“The time within which a writ of error may be issued or an appeal taken to obtain a review by the supreme court of any judgment or order in any civil action or special proceeding in a court of record, is limited to two years from the date of the entry of such judgment or order.” Sec. 3039, Stats. 1911.

It is significant that the period of limitation is subject to be interrupted by the talcing of an appeal. Therefore, as an original proposition, if that event happened within the two years after the entry of judgment', jurisdiction was acquired for some purposes, though for the final one of hearing and determination, other things were required. Harrigan v. Gilchrist, 121 Wis. 127" court="Wis." date_filed="1904-06-10" href="https://app.midpage.ai/document/harrigan-v-gilchrist-8187902?utm_source=webapp" opinion_id="8187902">121 Wis. 127, 213, 99 N. W. 909.

It is conceded that the notice of appeal was properly served, or if not conceded we hold such to be the fact, within the limitation period, but neither such notice nor the undertaking was filed with the clerk of the circuit court until after such period. Is an appeal taken, within the meaning of the limitation statute, before being perfected so as to afford this court jurisdiction for all purposes, subject to the arrival here of. the record ?

It is significant that sec. 3049, Stats. 1911, treats of the taking of an appeal as one thing and perfection of .it as another. This is the language:

“Any appeal shall be deemed taken by the service of a notice of appeal, and perfected on the service of the. undertaking for costs,” etc.

It should be said, in this connection, that the undertaking as well as the notice of appeal were duly served, within the limitation period, though not filed so as to require the clerk of the circuit court to transmit the record, until after its expiration.

From the significance attributable, reasonably, to the fact, as indicated, that the taking of an appeal is spoken of as one thing and perfecting of it as another, it might well be said that the language, “Any appeal shall be deemed taken” in sec. 3049, refers t'o the words of the limitation statute, “The time within which a* writ of error may be issued or an appeal taken,” rendering certain the point of time when the running of the period of limitation is t'o be deemed interrupted. That is, that the language in sec. 3049 should be read as a proviso to see. 3039, thus:

“The time within which ... an appeal may be taken ... is limited to two years from the date of the entry of such judgment or order;” provided, any appeal shall be deemed taken by the service of a notice of appeal. So, looking at the statute in its letter only, the serving of a notice of appeal stops the running of the statute, but the court has held that both the taking and perfecting of the appeal must occur to have that effect. Yates v. Shepardson, 37 Wis. 315" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/yates-v-shepardson-6601754?utm_source=webapp" opinion_id="6601754">37 Wis. 315; Eaton v. Manitowoc Co. 42 Wis. 317" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/eaton-v-supervisors-of-manitowoc-county-6602303?utm_source=webapp" opinion_id="6602303">42 Wis. 317; Munk v. Anderson, 94 Wis. 27" court="Wis." date_filed="1896-09-22" href="https://app.midpage.ai/document/munk-v-anderson-8185279?utm_source=webapp" opinion_id="8185279">94 Wis. 27, 68 N. W. 407; Haessly v. Secor, 135 Wis. 548" court="Wis." date_filed="1908-05-08" href="https://app.midpage.ai/document/haessly-v-secor-8189183?utm_source=webapp" opinion_id="8189183">135 Wis. 548, 116 N. W. 175; Ady v. Barnett, 142 Wis. 18" court="Wis." date_filed="1910-02-22" href="https://app.midpage.ai/document/ady-v-barnett-8189830?utm_source=webapp" opinion_id="8189830">142 Wis. 18, 124 N. W. 1061. Whether the court would go that far now, since not' required to by the letter of the statute, 'if it had to deal with the matter as an original proposition, may be doubted in view of the analysis of the statute and liberal construction thereof to preserve the appeal remedy in Harrigan v. Gilchrist, 121 Wis. 127" court="Wis." date_filed="1904-06-10" href="https://app.midpage.ai/document/harrigan-v-gilchrist-8187902?utm_source=webapp" opinion_id="8187902">121 Wis. 127, 99 N. W. 909.

There are expressions to be found, particularly in Huebner v. Koebke, 42 Wis. 319" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/huebner-v-koebke-6602304?utm_source=webapp" opinion_id="6602304">42 Wis. 319, indicating that the papers must actually be placed on file with the clerk of the circuit' court to interrupt the running of the statute; but not' in any case where the question was up for decision, nor in any such way as to indicate there was a considerate purpose to lay down a rule on the subject. It is considered, now, that the words of the statute, in their literal sense, except so far as heretofore firmly departed from, should be followed. So proceeding, the restrictive effect of the statute must be held hot, in any event, to go further than to require perfecting of the appeal within the limitation period by service of the notice of appeal upon the adverse party and upon the clerk of the court in which the judgment or order appealed from was rendered, and service of a copy of the undertaking on the adverse party. TRe rigorous character of tRe early decisions on this subject, Ras been very much softened(in recent' years, as particularly indicated in Harrigan v. Gilchrist. In Ady v. Barnett, supra, the court held that a vitally defective undertaking could be perfected even after tRe limitation period; tRus dealing with' tRe service of the notice of appeal as sufficient to give tfiis court jurisdiction to take and retain tRe cause for final disposition, only waiting upon tRe due perfection of tRe appeal, evidenced by tRe record. It follows tRat tRe objection to jurisdiction must be overruled.

It is conceded tRat if tRe plaintiffs Rad substantially permanently deprived the wolf of Ris liberty, — Rad Rim so in their power that escape was highly improbable, if not impossible, before defendant appeared on the scene and with Ris gun pointed so as to reach within some three feet of the animal delivered a finishing shot, it had .become the property of plaintiffs and was wrongfully appropriated by appellant'. Such is according to the prevailing rule. TRe instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property interest in it accrues which cannot be divested by another’s intervening and killing it. Ingham, Law of Animals, .5. Such is the law of the chase by common-law principles, differing from the more ancient' civil law .which postponed the point of vested interest to that of actual taking.

TRe evidence in this case very strongly tends to establish all the facts requisite to ownership of the wolf by plaintiffs, — so strongly that all reasonable doubts in respect' to the matter, if any would otherwise Rave remained, might well Rave been removed by the superior advantages which the trial court Rad. In the light of other evidence, all reasonable doubts may well Rave been removed as to who delivered the shot which so crippled the animal as to cause him to cease trying to escape, thus permitting appellant to substantially reach it with the muzzle of his gun at the instant of delivery of the finishing ■ shot. That, at such instant, the plaintiffs were in vigorous pursuit of the game, the evidence is clear, and that in a few moments, at most, they would have had actual possession, is quite as clear. So we must' hold that the verdict was properly directed and the judgment properly rendered thereon.

By the Oourt. — The judgment' is affirmed.