Wheeler v. Smith

18 Wis. 651 | Wis. | 1864

By the Court,

Cole, J.

It appears that a next friend was in fact appointed by the justice before the commencement of the suit. It did not, however, appear from tbe summons who tbe next friend was, or that one bad been appointed. Tbe correct practice undoubtedly is, for tbe summons to describe tbe plaintiff as “ an infant wbo sues by A. B., who is appointed by tbe court to prosecute for him as next friend,” &c. Tbe summons might have been amended by the justice so as to make it regular, had a motion been made for tbe purpose. Sec. 4, chap. 120; secs. 37 and 38, chap. 125, R. S. But tbe irregularity in the process in this particular was a mere technical defect, not affecting tbe merits, and should have been disregarded by the circuit court. Warren v. Gordon, 10 Wis., 499; Hafern v. Davis, id., 501; Carney v. Doyle, 14 Wis., 270.

Tbe account books were rightly admitted in evidence. Tbe plaintiff F. F. Wheeler answered all tbe questions in respect to the books necessary to make them evidence in tbe cause. Sec. 88, chap. 137. All the articles in tbe bill sued on, be said, were charged by him in tbe books. We perceive no reason why the books should not be evidence of the sale and delivery of those articles.

Tbe proof as to the settlement was conflicting, and therefore tbe decision of tbe justice upon that point must be deemed conclusive. This cause was tried by a justice without a jury. At tbe close of the testimony he took time to consider of his judgment, and made an entry in his docket as follows : “ Cause submitted to the court. Continued to June 1st, A. D. 1863, at 9 o’clock A. M.” It is claimed that the continuance of the case from May 29th to June 1st, without specifying the place, or at whose request, or for what purpose, operated as a discontinuance of the cause. In Roberts v. Warren, 3 Wis., 736, the court held that a justice should enter in his docket every adjournment, stating at whose request and to what time and place, and the court held that an omission of the justice to state, in his docket, the time and place of an adjournment would operate as a discontinuance. This decision we have followed in the case of Brown v. Kellogg, 17 Wis., 475. The reason given in those cases for this ruling is, that the parties have no other means of knowing satisfactorily the time when and the place where to appear with their witnesses to try the cause, except the docket of the justice, or may fall into a mistake upon this point, and therefore the entry of the justice should be explicit in that particular. But this reason relates to an adjournment proper, to enable parties to prepare for the trial of the cause. The statute provides that whenever a justice shall take time to consider upon a cause submitted to him for a decision, he shall continue the cause to a time to be named by him, not more than seventy-two hours from the time the same was submitted, at which time he shall enter judgment. Sec. 96, chap. 120. This is different from the ordinary adjournment. It is a holding open the cause until the justice can examine it and make up his decision. Of course no further testimony can be given, nor can the parties have a.ny further communication with the justice about it. All they can do is to be present and hear the decision. Now when a justice, as in this case, takes the cause under advisement, and states in the docket the hour when he will give his decision, not exceeding the time limited, it seems to us that this is sufficient. If he mentions no 'place, the only presumption which can be made is, that the decision will be rendered where the cause was tried. We therefore think the reason for requiring great strictness in the entry on the docket of the justice in ordinary adjournments, does not apply here.

The judgment of the circuit court is reversed, and the judgment of the justice affirmed.