Neff v. Chicago & Northwestern Railroad, 14 Wis. 370

Neff v. Chicago & Northwestern Railroad

14 Wis. 370 | Wis. | 1861

By the Court,

Paine, J.

In tbis case tbe land of tbe appellant was taken by tbe railroad company, and be attempted to appeal from tbe appraisal of tbe commissioners to tbe circuit court. Tbe commissioners appraised different parcels of tbe appellant’s land, situated in different towns, at different times, and made separate awards. Tbe appellant served copies of tbe awards on the attorneys of tbe company within tbe time limited for appealing, together with a written notice that be appealed from both awards ; and on motion tbe circuit court dismissed tbe appeal, from which order tbe appeal was taken to tbis court. It was contended by tbe counsel for tbe company that tbe statute required separate appeals from tbe appraisal of each tract, or at least from each award. And bow it should be done is a question upon which tbe statute furnishes very little light. But even assuming that there should be separate appeals from tbe different reports, relating as they did to lands in different towns, we are still not prepared to say that so far as tbe notice to tbe party was concerned, tbe one served in tbis case would not be sufficient. So far as all tbe purposes of a notice were concerned, *371it certainly was sufficient. It advertised tbe company of tbe fact of appeal from each report with just as much certain ty as if tbe same matter had been communicated in two notices instead of one. It is true we have held at tbe present _ . ... . term, that m appeals from tbe circuit court to this court, the statute contemplates separate appeals from different judgments or appealable orders, and that two .could not be joined in one notice and undertaking. But one of tbe strong reasons for so bolding was tbe fact that an undertaking was required to be given in a fixed amount,' and if tbe party could join several appeals in one undertaking, be might thereby evade tbe intent of tbe law in requiring security. Another reason was tbe confusion which it might cause in tbe proceedings in this court, by joining in one appeal several orders or judgments, some of which we might be compelled to affirm, while reversing or modifying others. But even in those cases we did not hold that if the party appealing should serve a proper notice in each case upon the clerk and give a proper undertaking on each appeal, he might not notify the party of several appeals in one written notice. At all events we are of the opinion that in this proceeding, had the appeal been otherwise properly taken, the notice to the party was sufficient, and if each award constituted the subject of a separate appeal, they could have been so entered in the circuit court.

But we have, after considerable hesitation, come to the conclusion that the circuit court properly dismissed them, for the reason that it does not appear that any notice was served on the clerk within the time limited for appealing. The statute upon the subject is found in sec. 19, chap. 137, Gen. Laws of 1856, p. 254, and all it says is that the company or the owner may “ appeal to the circuit court wherein is deposited any such report, within thirty days after the filing or depositing thereof.” As to how the appeal is to be taken it says not a word. And we had some dou})t whether any appeal could be taken under such a statute. But we finally came to the conclusion that the clause which provides that the clerk shall record the reports unless an appeal is taken in thirty days after they are deposited, could be said to in-*372^cate an- intention that tbe notice of appeal should at least be served upon Mm. And perhaps in tbe absence of this clause, it might fairly be said that the legislature, in omitting to prescribe the manner of appealing, intended it should be done in the manner usually provided for in such cases. The reasoning in Gold vs. Verm. C. R. R. Co., 19 Vermont, 478, would sustain such a conclusion. The most usual mode of appealing in such cases is by serving a notice on the party and on the clerk. And we think the clause above referred to must be held to have intended a notice to the clerk, for at the end of the thirty days he is required to act with reference to the question whether an appeal has been taken or not. No notice appears here to have been served on the clerk within the thirty days, and we therefore cannot say that the court erred in dismissing the appeals.

The order is affirmed.