Shaw v. Webster

21 Wis. 129 | Wis. | 1866

Dixon, C. J.

Appeal from a judgment of the county court of Milwaukee county, in an action of replevin originally commenced before a justice of the peace. In the county court an order was made directing the plaintiff to file security for costs, staying proceedings on his part till he should do so, and giving five days in which to file security. The order was served on the plaintiff’s attorney on the same day it was made. No security having been filed, the defendant, seven days afterwards, procured an order requiring the plaintiff to show cause, two days later, why he should not file security for costs, or, in default thereof, why the defendant should not have judgment of dismissal of tbe action, and for the return and value of the property in suit, with costs. On the day named in the last order, the plaintiff not appearing, the defendant took the case up out of its order on the calendar, and obtained judgment against the plaintiff and his sureties in the re-plevin bond, for the value of the property and costs of the action. Four days afterwards, and . within twenty days after the making and service of the order directing the plaintiff to file security for the costs, the plaintiff complied with the order by filing with the clerk a bond in the form prescribed by the statute, and subsequently brought this appeal from the judgment.

It is obvious from this statement of facts, that the taking of the case up out of its order upon the calendar, and entry of judgment against the plaintiff pursuant to the order to show cause, was irregular. The plaintiff, had, by statute (R. S., ch. 133, sec. 90), twenty days to file security after the notice of the order to stay proceedings ; and the court could not, Iry rule or order, prescribe a shorter time. Any proceeding, therefore, or step taken by the defendant for want of such security before the expiration of the twenty days, was erroneous.

By the Oouri. — The judgment of the county court is -reversed.