| Wis. | Nov 3, 1886
Tbe appellant alleges -as error on the hearing" in this court,— (1) that the fourth finding of fact by the court is wholly unsupported by the evidence; and (2) that the county court erred in refusing to give the defendant a jury trial, and holding that the defendant had waived his right to a jury trial because he did not demand such trial on the first day of the term at which the case was tried.
The county judge finds, as a fact, that notice to remove the fence in question was served on the defendant on the 4th day of December, 1883. The only evidence in the record which at all tends to show when such notice was in fact served is in the testimony of the witness C. Y. Thomas, and he testified that such notice was served on the 6th day of May, 1883. It is urged by the learned counsel for the state that this evidence is clearly a mistake. If it was a mistake, and there was evidence before the court on the trial showing the service of the notice on the 4th of December, 1883, as claimed by the respondent’s attorney and as foui^cl by the court, then it was clearly the duty of the judge who tried the case to have so certified when his attention was called to the fact on the application to correct the bill of exceptions upon that point. The learned judge having declined to certify that the evidence of Thomas was a mistake, or that there was any other evidence showing that such notice-was served on the 4th of December and not on the 6th of May, 1883, we must hold that the exception to that finding of fact was well taken, and that it is wholly unsupported by the evidence. Striking out that finding and the evidence of Thomas above referred to, there is no evidence in the record showing when the notice was served.
If the notice was in fact served on the 6th of May, 1883,. then it is clear that such notice is a void notice and did not set the time running against the defendant within which he was by law required to remove his fence. The statute is. clear that a party cannot be required to remove his fences from within the boundaries of a highway at any time be
The learned counsel for the state insists that this court should not consider the second question urged by the appellant, viz., that the defendant was refused a jury trial, because he says that question is not properly raised by the bill of exceptions. It is true, the bill of exceptions, as originally signed and returned to this court, did not raise the question; but upon motion of the attorneys for the state the record was returned to the county court for the purpose of correction, and after it was so returned the county judge corrected it in some respects as requested by the counsel for the state; and also, upon request of the counsel for the appellant, he inserted in said bill of exceptions the following: “ The County Court of Fond d/u, Lae County. May Term, 1885. Commenced May 11, 1885. "When the above cause was called for trial, and before any proceedings were had therein, the defendant demanded a jury trial, which motion and demand was denied for the reason that no jury was demanded on the first day of the term; and the defendant, by his counsel, then and there duly excepted to the ruling of the court denying the said motion.”
The learned counsel for the state moved this court to strike said statement out of the bill of exceptions, because it was improperly inserted therein. The grounds of the motion were that it was inserted after the time to settle the bill had expired, and without notice to the respondent to have the bill amended in that respect. The testimony of the attorney for the appellant shows that he applied to have the bill amended in this respect at the same time the counsel for the respondent applied , to have it amended in respect to other matters, and that the judge allowed his amendment at the same time the amendments were allowed
We will therefore pass upon the question raised by the learned counsel for the appellant, viz., Was it error to refuse the appellant a jury trial? He was certainly entitled to a jury trial unless he had waived it in the manner prescribed by law. See sec. 5, art. I, Const.
By law the party to an action in the county court of Fond du Lac county waives the right to a trial by jury (1) when he does not demand a jury when the action is called for trial; and (2) if the trial of an action shall be set down for a particular day, then he must demand a jury at the time the same is so set down for trial. See sec. 2478, R. S., as amended by ch. 86, Laws of 1880. This case was not called for trial until the 13th of May, 1885. Sec. 2477, which regulates jury trials in the Fond du Lac county court, as well as other county courts, as amended by ch. 86, Laws of 1880, reads as follows: “ If a jury shall not be demanded by either party when the action shall be called for trial, or, if the trial of an action shall be set down for a particular day, then at the time the same is so set down for trial, a jury trial therein shall be deemed to have been waived, and such action shall be tiled by the court unless the court shall otherwise direct.” The first part of sec. 2478, as amended, reads as follows: “If any party to an action triable by jury, in any such courts, . . . shall, at the
It seems to us these sections can have but one construction. The party waives his right to a jury trial when he fails to demand a jury when the action is called for trial or at the time the action is set down for trial on a particular day. The words in sec. 2418, “ shall at the time such action is called,” must be construed in connection with the words in sec. 2411, “when an action shall be called for trial,” and they should not be construed to mean a mere calling of the case at the opening of the court on the first day of the term, as is usual in courts, for the purpose of ascertaining in a general way what cases are for trial at the term. ¥e think, from the statement made by the county judge in the bill of exceptions, the appellant had done nothing to waive his right to a jury trial when the action was called for trial on the 13th of May, 1885, and that it was error to refuse a jury trial in the action. Tor the two errors above stated the judgments in the two cases must be reversed.
After a careful consideration of the facts in this case and of the statutes applicable to such facts, speaking for myself only and not for the court, it appears to me that if the notice and order had been served, as is now claimed by the state, December 6,1883, yet no case would have been made against the appellant to recover the penalty prescribed by sec. 1331, R. S. The order served, as I understand it, was not an order made under sec. 1330, but an order made widening the old highway through the appellant’s land; and the fence which he was ordered to remove was not in the old highway, but was brought within the limits of the widened highway by reason of the order widening the same at that place. If such is in accordance with the real,facts,
By the Gourt. — The judgment of the county court in each case is reversed, and the cases are remanded for new trials.