Thompson v. Thompson

24 Wis. 515 | Wis. | 1869

Cole, J.

We are of the opinion that the circuit court never acquired jurisdiction of the. appeal. The statute requires a person appealing from an order or judgment of the judge of the county court, to file, within sixty days from the date of the. act appealed from, his notice of appeal, together with a bond to the adverse party, in such penalty and with such surety or sureties as the county judge shall approve, conditioned as therein prescribed. Secs. 24 and 25, ch. 117, R. S. This must be done in order to perfect the appeal and remove the cause to the circuit court. The bond in this case did not run to “the adverse party,” as the statute required. Nelson v. Clongland, 15 Wis. 392; Tallmadge v. Flint, 19 id. 621, and Bowles v. Page, 20 id. 309. The persons who gave the bond executed it “each as principal for himself and as surety for his co-appellants.” It is claimed that there must be at least one surety besides the principal obligors. Whether this is a correct view of the statute, we will not undertake to decide, since the bond is defective for the reason just assigned. See, however, Bowles v. Page, supra, and Bonesteel v. Orvis, 20 Wis. 646. The circuit court denied the motion for leave to file a new appeal bond nunc pro tunc, on the sole ground and for the reason that it had no jurisdiction or authority in law so to do. It is insisted that the court erred in this ruling, and that it was competent for the court to supply the omissiou and allow a proper appeal bond to be filed. Section 38, chap. 125, and section 4, chap. 139, R. S., are relied on in support of this position. We think section four is not applicable to appeals from the county to the circuit court, even if it were in force. But it has been repealed by section 34, chap. 264, Laws of 1860. And we also think that the circuit court had not the power, under section 38, chap. 125, to' permit the appeal bond to be filed, since the obvious effect of such an amendment would be to extend the time within which an appeal can be taken. Besides, if the broad power of amendment given in section 38 reaches this case, and authorized the court to permit the amendment to be made, then it would seem that section 17, chap. 264, was unnecessary. That section, being a subsequent enactment, was manifestly passed to give the court from which an appeal is taken, power to perfect it when the party has in good faith given the notice of appeal, but, through accident or mistake, has failed to do some other act necessary to perfect the appeal. Either the county or circuit court might supply the omission under section 38, if that section has the wide application sought to be given it. But we think it does not reach this case.

It was not claimed on the argument, by the counsel for the appellants, that the motion for leave to file a new appeal bond was an application under section 29,' chap. 117. That section provides that if any person aggrieved by any act of the judge of the county court, shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court may, on petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably. It is very doubtful whether the appellants, had they proceeded under this section, as they manifestly did not, could have brought their case within it. They can hardly be said to be ‘‘ without default on their part.” They snrely undertook, but failed, to give a proper bond to perfect the appeal. They neglected to take the necessary steps to secure the benefit of an appeal. But, as already stated, it was not insisted that the application to the circuit court was one made under this provision. And as that court never acquired jurisdiction of the appeal, its action in the matter must be affirmed.

By the Court. — The order of the circuit court is affirmed.