Packard v. Backus

| Wis. | Oct 25, 1892

Lyon, C. J.

At the August term, 1890, this case was before the court on appeal, and on November 25, 1890, judgment was entered, reversing the judgment of the circuit court for the plaintiff, and awarding a new trial. 78 Wis. 188" court="Wis." date_filed="1890-11-25" href="https://app.midpage.ai/document/packard-v-backus-8183528?utm_source=webapp" opinion_id="8183528">78 Wis. 188. The taxable costs in this court have not been paid, and the cause has not been remitted to the circuit court. The defendants and appellants now move, under sec. 3072, R.. S., and ch. 478, Laws of 1887 (S. & B. Ann. Stats, sec. 3072a), for an order that, unless plaintiff at once pays such costs and procures the cause to be so remitted, his complaint and action be dismissed.

Sec. 3072, R. S., is as follows: “ In every case in error or on appeal in which the supreme court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had thereon within one' year from the date of such order in the supreme court, or, in default thereof, the action shall be dismissed, unless upon good cause shown the court shall otherwise order.” 2 S. & B. Ann. Stats, sec. 3072, being sec. 1, ch. 478, Laws of 1887, is as follows: “It shall be the duty of the plaintiff in any action or proceeding, when a judgment or order in his favor therein is reversed by the supreme court on defendant’s appeal, to pay the taxable costs on such reversal, and procure said cause to be remitted to the trial court, and bring the same to trial within one year after such removal, unless the same be continued for cause [it is believed that the word ‘ removal ’ should be read ‘ reversal ’]; and, if he should fail so to do, the complaint shall be dismissed: provided, however, that no complaint shall be dismissed until the expiration of six months after the passage of this act, nor until at least one term of the trial court has been held at which the same could be moved.”

We are of the opinion that the proceedings indicated in these statutes to dismiss an action for want of prosecution must be taken in the circuit court. Such has been the uniform practice in oases arising under sec. 3072. Walsh v. Dart, 19 Wis. 433" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/walsh-v-dart-6599372?utm_source=webapp" opinion_id="6599372">19 Wis. 433; Bonesteel v. Orvis, 31 Wis. 117" court="Wis." date_filed="1872-01-15" href="https://app.midpage.ai/document/bonesteel-v-orvis-6601050?utm_source=webapp" opinion_id="6601050">31 Wis. 117; Trowbridge v. Sickler, 48 Wis. 424" court="Wis." date_filed="1880-02-03" href="https://app.midpage.ai/document/trowbridge-v-sickler-6603043?utm_source=webapp" opinion_id="6603043">48 Wis. 424. We are not aware that a motion like this has. ever before been made in this court. Moreover, the title of ch. 478, Laws of 1887, to wit, “ An act relating to practice in the circuit courts of the state of Wisconsin,” shows that the legislature supposed that the circuit court is the forum in which proceedings under the above statutes are to be taken. Hence the appellants herein can only move in the circuit court to dismiss the action under the above statutes, and in order to do so they must first procure the record to be remitted to that court. Trowbridge v. Sickler, 48 Wis. 424.

By the Court.— The order is denied, without costs.