149 Wis. 548 | Wis. | 1912
Tbe plaintiff having obtained judgment against tbe respondent Alice B. Fellows of restitution of certain premises in an action of unlawful detainer before a justice of tbe peace, said respondent Fellows gave notice of appeal from tbe judgment, and also gave an undertaking to stay
At the close of the plaintiff’s evidence a verdict for the defendants was directed on the ground that no appeal ever was taken in the unlawful detainer action. This direction was unquestionably correct. The appeal is not taken until both the notice of appeal and the affidavit of good faith are presented to the justice. Hence no appeal was ever taken in the present case. Knappe v. Seyler, 87 Wis. 165, 58 N. W. 248. The undertaking was conditioned to pay the costs of the appeal, and the rent and other damages accruing “during the ap-pealThe conditions of the undertaking, by their express terms, only became operative in case an appeal was taken, consequently they never have been breached.
It is argued that the defendants are estopped from claiming-that no appeal has in fact been taken because the undertaking recites that the same has been taken. On this proposition the cases of Clark v. Miles, 2 Pin. 432; Love v. Rockwell, 1 Wis. 382; Billingsley v. Harris, 79 Wis. 103, 48 N. W. 108; Zechman v. Haak, 85 Wis. 656, 56 N. W. 158; Wilkinson v. United
In the present case there is no such situation. The statute gave the plaintiff ten days within which to take the appeal and file the bond. She might file the bond the first day and take the appeal the last day of the ten if she chose, or she might file the bond and never take the appeal, as she did in this case. In either case she was acting within her right. When the ten-day period had expired all parties understood that there was no appeal. The justice made no return, and the plaintiff caused a writ of restitution to be at once issued. The advantage or delay which would have resulted from a valid appeal was never secured, hence there is no room for the application of the doctrine of estoppel laid down in the cases cited. Whether the statute does not furnish a means of sharp practice by which a party may give a bond and then never take an appeal, and thus secure a ten-day delay which he ought not to have, and for which he gives no security, is a question addressed rather to the legislature than to the court.
By the Court. — Judgment affirmed.