121 Wis. 468 | Wis. | 1904
Rehearing
The appellants moved for a rehearing, and the following opinion was filed April 19, 1904:
Appellants move for a rehearing and modification of the mandate so as to permit them to correct their omission and file a properly certified record complying with sec. 3050, Stats. 1898. That we have power to permit necessary
In deciding the present case originally, we did not stop with mere ascertainment of the absence of any sufficient certificate to give jurisdiction. We examined all the papers sent here, and were convinced that, even if properly certified to have been used upon the motion, there was no probability that we should be able to reverse the conclusions of fact deduced therefrom by the trial court, or convict it of abuse of discretion. Hence it appeared to us that there would be nothing promotive of justice in permitting appellants to attempt to show excuse for the mistake in the certification, while injury and expense to respondent must obviously result from any such attempt and the resulting delay of finality in the order appealed from. We find nothing in appellants’ motion to change that conclusion.
While we purpose continuance of a general policy of liberality, as above indicated, of course we must not be understood as inviting laxity in practice. An offender against statutes or rules governing procedure will be spared the extreme penalty of the disobedience only upon terms which will protect his innocent opponent as far as possible from delay, expense, or injury, and which will, we hope, discourage further offenses.
By the Court. — Motion for rehearing denied, with twenty-five dollars costs.
Lead Opinion
The following opinion was filed February 2, 1904:
The order appealed from recites that it is based on the affidavit of Richard C. Sherwin and on affidavits of Camp, Mariner, and Yan Dyke in reply, and on “affidavit of numerous persons” as to value. The return of the clerk merely certifies that the mass of papers returned are “all the papers filed in the above-entitled action.” In neither nor both of these assertions is there anything- to identify any of the papers as the ones used upon the application for the order, nor to declare that the entire bundle includes all those so used. This is necessary to our jurisdiction, under sec. 3050, Stats. 1898. In its absence the appeal must be dismissed. Glover v. Wells & M. G. Co. 93 Wis. 13, 15, 66 N. W. 799; Tenney v. Madison, 99 Wis. 539, 75 N. W. 979; Madden v. Kinney, 114 Wis. 528, 90 N. W. 449.
By the Court. — Appeal dismissed.