Pettit v. Hamlyn

42 Wis. 434 | Wis. | 1877

RyaN, C. J.

Before return made to this appeal, the respondent moved to dismiss it on the ground that the return had not been made. The motion was heard after return made; and it was ordered that the appeal be dismissed, unless the appellant should pay the costs of the motion. It is admitted that the appellant saved the dismissal by payment of the costs as ordered.

The respondent now moves to dismiss the appeal, on the ground that the notice of appeal is double. American Button Hole Co. v. Gurnee, 38 Wis., 533.

If the defect in the notice of appeal were jurisdictional, it could not be waived; if irregular only, it could. And where, as in this case, the double appeal is from judgment and order, and there is no order of the court in the record (Johannes v. Youngs, ante, p. 401), we consider the duplicity in the notice an irregularity only. All the cases seem to treat the defect as an irregularity. And in such a case as this, we see no reason to hold it jurisdictional. The appellant takes an appeal which he had a right to take, but couples it with a superfluous appeal from- something not in the record.

Where an appeal is from two orders, or from a judgment and an order, and the record discloses two orders or a judgment and an order, it might be that the uncertainty to which the notice of appeal should apply, would render the appeal ineffectual for any purpose. But in the present case we have no difficulty in applying the notice of appeal, double as it is, to the judgment, the only thing in the record from which an appeal lies.

Tliis duplicity would llave been good ground of dismissal as ail irregularity. But we bold it waived by not being included in the former motion, and by acceptance of the costs paid by the appellant to save the dismissal. The only doubt of such waiver is the question whether duplicity in the appeal could be assigned as a ground of dismissal, before the record came here. And we think that it could. Where grounds of dismissal of such a character appear in the record below, and a motion is made to dismiss before return here, we see no difficulty in presenting them upon the motion, and think that they ought to be presented. As a rule there should be but one motion to dismiss for all causes existing when the motion is made.

By the Court. — Motion denied.