Moyer v. Strahl

10 Wis. 83 | Wis. | 1859

By the Court,

Cole, J.

A motion has been made to dismiss this appeal, for the reason, that it was not taken within thirty days, as required by the code. The order appealed from was entered on the 27th of November, and notice thereof given to the opposite party. The notice of appeal, which was served upon the clerk, is endorsed, filed, December 28. One of the attorneys, however, for the appellant, has made and filed an affidavit, in which he states, that the original notice of appeal was served upon the clerk, the same day that a copy thereof was served upon the attorney for the respondent, and that both services were made on the 23d of December. There is no counter affidavit filed, and we therefore are forced to believe that the clerk either made a mistake in dating the time the notice of appeal was filed, or that he did not file it the day it was actually served upon him. In either case, it would be hard to deprive the appellant of his right to an appeal on account of the mistake or default of the clerk, in filing the notice. The motion to dismiss the appeal is therefore denied.

The appeal was from an order adjudging the answer of the appellant frivolous. An examination of the answer will clearly show that it is not frivolous, within the decisions of this court, in the cases of Van Slyke vs. Carpenter et al., 7 Wis., 173; Grubb vs. Remington, id., 349; and The Farmers’ and Millers’ Bank vs. Sawyer, id., 379. If its allegations in respect to the usurous agreement should be sustained, by proper evidence, and it should be proven that the note was made payable in Minnesota for the express purpose of evading the usury laws of this State, it would present a serious question as to whether this did not constitute a good defence to the action. But it is not necessary for us to express any opinion upon the sufficiency of this answer, and whether it discloses a state of facts constituting a good de-fence or not, and we must not be understood as doing so. It is manifest, that the answer is not so clearly untenable and insufficient, that the court could determine its-character upon inspection, without argument or research. It admits of great doubt as to whether it does not set up a good defence.

The order of the Circuit Court adjudging the answer frivolous, must be reversed, and the eause remanded for further proceedings, according to law.