Sutton v. Wegner, 72 Wis. 294

Sutton v. Wegner

72 Wis. 294 | Wis. | 1888

Cassoday, J.

1. The plaintiff served his amended reply the next day after the service of the original. Tie had the right to amend as “of course, without costs and without prejudice to the proceedings already had.” Sec. 268o, E. S. It may be questionable whether the mere omission of the alleged scandalous words should be regarded as an amendment. Assuming that it should, still the right to make it. as “ of course ” and “ without costs,” should not be taken away by such hasty motion to strike out. Besides, it is not very evident that such amendment was prejudicial to any proceeding-already had. Certainly there was no adjudication to that effect. It secured to the defendant all he sought by his motion without any adjudication. Had the trial court rightfully adjudicated that the words thus omitted were pertinent to the issue, and properly pleaded, and not scandalous, then, obviously, the amendment could not have been prejudicial to any proceeding already had. The order on the motion to strike out did not determine that the amendment was thus prejudicial, nor anything else. It simply imposed $10 as “ the costs of motion ” on the plaintiff, without determining anything. On this simple review of that order we are not at liberty to adjudicate upon matters which the trial court thus failed to determine. An order thus imposing costs is irregular, and is certainly ap-pealable.

2. The return of the justice was filed in the county court in time to have noticed the cause for trial and placed it upon the calendar for the June term of that court. It was not so noticed nor placed upon the calendar for that term, nor for the September term, 1887. Such failure on the part of the defendant as to the September term seems to have been the result of a miscarriage in_ a bona fide attempt to serve the notice of trial in time. The rightfulness of the amendment to the answer by leave of the court, setting up counterclaims which would have been in excess of the ju*298risdiction of the justice,ds not challenged. Whether such amendment took the case out of the statute (sec. 3766, R. S.) requiring the appeal to be brought to a hearing before |the end of the second term after the filing of the return of the justice, was not argued and has not been considered. Eor the purposes of this appeal we assume that it did not. During the September term the defendant gave notice of a motion to be made October 8, 1887, for the continuance of the appeal by the special order of the court for cause shown in the affidavits served with such notice. The cause so shown was held to be sufficient, and Ave think such holding is sanctioned by the repeated decisions of this court. Holt v. Coleman, 61 Wis. 426; Platto v. W. U. Tel. Co. 64 Wis. 341; Comdohr v. Coleman, 64 Wis. 413. The mere fact that such application for continuance Avas not determined until after the end of such second term did not deprive the court of jurisdiction, nor take away its right to so continue such appeal by special order on cause being shoAvn. Holt v. Coleman, 61 Wis. 426. In fact the allowance of such continuance after the time thus limited by statute has expired, for good cause shown, seems to be expressly authorized by sec. 2831, R. S. Whereatt v. Ellis, 68 Wis. 72; Milwaukee Co. v. Pabst, 64 Wis. 247. We find no error in such continuance of the appeal.

3. The principal objection made is that the affidavit of merits is insufficient. In support of this position counsel rely upon the ruling in Pinger v. Vanclick, 36 Wis. 141. In that case the affidavit was by the defendant’s attorney, and stated that, “ upon the examination of the testimony gmenbefore the justice and from the statement of facts made to him by the defendant, he verily believed,” etc. This 'was properly held not to be a compliance with the-rule which required “ that the case in such action has been fully and fairly stated to his counsel,” etc. Sec. 2, Circuit Court Rule XX. Here there seems to be a full, if not a literal, *299compliance with that rule. The defendant’s affidavit states “ that be has fully and fairly stated the case herein to . . . his counsel,” etc.

By the Court.— The order of continuance is affirmed, and the order imposing costs on the motion to strike out is reversed, and the cause is remanded to the superior court of Milwaukee county for further proceedings according to law. No costs are allowed to either party, except the appellant is required to pay the fees of the clerk of this court.