Oconto Land Co. v. Mosling

122 Wis. 440 | Wis. | 1904

Maeshall, J.

It is conceded, as the fact is, tbat the notice of appeal was properly served pursuant to sec. 3049, Stats. 1898. Tbat, by tbe express words of such section, constituted tbe taking of an appeal, and conferred jurisdiction here, sufficient to enable this court to permit such mistakes to be corrected as may be necessary to put it in tbat full possession of tbe cause requisite to a hearing and determination thereof, though sec. 3052 provides tbat, to render an appeal “effective for any purpose” an undertaking must be executed as therein required. This subject was so recently discussed, all previous adjudications being referred to, in Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909, tbat it seems we ought not now to do more than to refer thereto in deciding the matter. As therein indicated, the power of tbe court is ample, and bas often been exercised, to allow an appeal to be perfected in circumstances tbe same or similar to those characterizing this one. Whether to do so, and whether, if a favor in that regard is granted, it should be with or without terms, as indicated in the case referred to, rests in the sound discretion of the court, which need not, and probably ought not to, be exercised in favor of the party in default, where, from an inspection of the record it clearly appears that no question could then be presented by him impeaching the decision complained of, admitting of a reasonable controversy as to whether it should be decided adversely to him. Milwaukee T. Co. v. Sherwin, 121 Wis. 468, 99 N. W. 229. That is the situation here. Defendant might have secured a stay of proceedings with an extension of the time for answering till such reasonable time after the determination of the apj>eal as to enable him to obtain the discovery sought before pleading, in the event of a decision in his favor. He answered, doing the very thing which he claimed he could not do in advance of such discovery. That, in reason and upon authority, waived such discovery and necessarily the error, if there were any, affecting the order complained of. It has been held that where a defendant in an action, before answering, moves the court, raising a question for decision which, in the very nature of things, should be decided, if at all, before issue joined, and the decision is erroneously against him, such error is waived by voluntarily answering before a correction thereof. Franke v. Nunnenmacher, 23 Wis. 297. On the same principle it has been held that if a pleading be erroneously held bad on demurrer, the right to appeal from the decision is waived by service of an amended pleading. Hooker v. Brandon, 66 Wis. 498, 29 N. W. 208. In both classes of cases the reasoning of the court is that if a party injuriously affected by an error takes a step necessarily involving submission thereto, in that a reversal thereof could have no effect whatever upon his rights, he waives the privilege of having the matter reviewed on appeal. That exactly fits and rules the situation now presented, adversely to appellant. So, if the mistake, in failing to perfect the appeal by the service of an undertaking as required by law, were cured, we would be compelled to dismiss the appeal as having been waived. So the motion of appellant must be denied, and the motion of respondent to dismiss must be granted.

By the Gowrt. — So ordered.