166 Wis. 342 | Wis. | 1917
Did tbe circuit court lose jurisdiction to grant tbe motion to set aside tbe verdict and order a new trial by failure to determine tbe matter within tbe trial term? Counsel for appellants so contend and tbe question is ruled that way by sec. 2878, Stats., and tbe decisions in respect thereto (Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664; Kurath v. Gove A. Co. 144 Wis. 480, 129 N. W. 619) unless tbe requirement under such section was waived by counsel, which they were competent to do, expressly or impliedly (Second Nat. Bank v. Smith, supra), or such requirement was abrogated by ch. 592, Laws 1913, now found at sec. 113.10, Stats. That provides generally,
Now it seems that, within the principles stated, we can reasonably, and should, hold that the words “all other mat-' ters” in the act of 1913 were intended to refer to all other matters dealt with in such act not therein specially prescribed for.
It seems that the idea of the act of 1913, having been intended to supersede sec. 2878, is unmistakably negatived by the fact that not only does it not contain any general repealing clause, or special one covering the subject, but the title recites, as the main purpose, that of revising ch. 113, and then specifies in much detail, particular matters, including repeal of various sections of the statutes and numerous session laws dealing with circuit courts, without the remotest reference to the section in question or the subject thereof. The legislature doubtless proposed to thus set forth the full scope of the act.
From the foregoing it is considered that there was no intention, by the act of 1913, of changing sec. 2878. That conclusion is supported by what follows. In the decision of Koenig v. Sproesser, 161 Wis. 8, 152 N. W. 473, decided some time after the passage of such act, sec. 2878 was referred to as ruling the question of whether such a motion as the one in question must be determined during the trial term. To hold, as counsel for respondents now contend and as the trial court regarded the law to be, would require overruling such decision.
That the legislature, in dealing with sec. 2878 subsequent to the act of 1913, regarded it as not affected by such act, is
It is not claimed that there was any express waiver in the case. If counsel did not do anything inconsistent with insisting upon the requirement of the statute, there was no implied waiver. The fact that they did not expressly insist, when the motion was submitted, upon a decision being rendered before the expiration of the term, does not show waiver. Kurath v. Gove A. Co. 144 Wis. 480, 129 N. W. 619. Counj sel had a right to presume that if time beyond the expiration of the term would be required by the judge in order to enable him to consider the matter, he would provide therefor by continuing the time. ( He stated in a memorandum filed with the order that the delay was not owing to any fault on the part of counsel for appellants. Had they asked for the delay over the term, as in Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664, the case would be different.
It is claimed that counsel for appellants waived the requirement of the statute by, after being advised that the motion would be granted, making some suggestion as to the form of the order. That there was no thought of waiving anything thereby is clearly indicated by the fact that in connection with making the suggestion the circuit judge was notified that it was made without “waiver of any of defendants’ rights in the premises” and later, before the order was entered, the judge was notified that the provision of the statute would be insisted upon.
On the whole record we are unable to discover any sound basis for the claim that defendants waived their right, which they now insist upon. Their counsel did not, at any time,
It follows from what has been said that the order appealed from is fatally defective for want of jurisdiction to make it.
By the Oourt. — The order is reversed, and the canse remanded for further proceedings according to law.