78 Wis. 449 | Wis. | 1891
The respondents obtained a judgment in the justice’s court against the appellant, and the appellant appealed the case to the circuit court. At the December term
It may appear a little singular that the respondents should wish to have the appeal reinstated against the objection of the appellant, but the reason for such reinstatement is found in the affidavit of the counsel of the respondents, in support of the motion, as follows: “ That after such dismissal, after a considerable negotiation between deponent and said Tomkins [the counsel of the appellant], said Tomkins raised the point that such sureties [in the undertaking on the appeal] were not liable upon the bond; and from an examination of the authorities it would seem to deponent that, in the case of the bond in question herein, the sureties are not liable unless judgment is recovered against them in the circuit court upon the appeal.” It seems that, under the statute then in force, if the appeal was dismissed, the sureties could not be held to pay the judgment. But soon after-wards the statute was so amended that they could be held after the dismissal of the appeal. There is another reason given, but could not have been the ground of the order of reinstatement, and that is that said Tomkins represented that the sureties would pay the judgment if the appeal was dismissed. But Tomkins positively denied this statement in his affidavit. But, if this statement had not been denied, such a ground for the reinstatement of the appeal would be utterly frivolous. The real ground, if there was any, must have been that the counsel of the respondents procured the dismissal of the appeal under said mistake of the law.
By the Court.— Tbe order of tbe circuit court is reversed, and tbe cause remanded with directions to set aside tbe order vacating tbe order dismissing tbe appeal and reinstating tbe said appeal; and also the consequent order or rule on the justice to return tbe records and papers to tbe circuit court.