Lloyd v. Frank

30 Wis. 158 | Wis. | 1872

Lyobt, J.

This is a motion to dismiss the appeal because the printed case furnished by the appellant does not contain an abstract of the judgment roll.

Rule 8 of this court requires the appellant to make a case containing “ a brief abstract of the return of the clerk, and the reasons of the court below for its judgment, if the same can be procured.” Rule 9 requires that the same be printed. Rule 28 is as follows: “If the abstract of the case required by Rule 8 of this court, shall fail to present truly, fairly and fully a statement of the material facts of the case, according to the return of the clerk of the circuit or county court, the court will, on its own motion, in its discretion, dismiss the writ of error or appeal.” The above rules were made for the convenience of the members of the court, and the court will exercise its discretion as to dismissing the appeal or writ of error, where the printed case fails to comply with Rule 8.

We have concluded, therefore, not to entertain motions of this kind, but to exercise our discretion in the premises, if we find upon an examination of the case after argument, that the rule has not been complied with. It is true that in Wilcox v. Hathaway, 12 Wis., 543, such a motion was entertained, "but the object of the above rules as herein stated, was there asserted by the court, and more mature consideration leads us to the conclusion that where a defective printed case has been furnished, the court should exercise its discretion to dismiss or retain the appeal or writ of error, without the intervention of a motion to dismiss made by the respondent or defendant in error. If no printed case be served as required by Rule 10, that rule provides the appropriate remedy.

By the Court.— The motion is dismissed without costs.