majority">Paiíte, J.

It is evident tkat tke appeal from tke justice was never perfected, so.as to give tke circuit court any jurisdiction of tke case. Tke notice of appeal, wkick *298is absolutely essential, was never served. The circuit court had, therefore, no power to render a judgment for costs, as has been decided by this court. Mitchell v. Kennedy, 1 Wis. 511; Pratt v. Brown, 4 id. 188.

In Paine v. Chase, 14 Wis. 653, this court held that, where a writ of error was sued out of this court, and was dismissed because there was no judgment to which it would lie, judgment for costs on such dismissal might be rendered here. Perhaps some of the reasoning of the chief justice, as well as that in some of the cases cited by him, would tend t.o sustain a different conclusion from that arrived at in Mitchell v. Kennedy, and Pratt v. Brown. But the case was distinguished from them upon the ground that the suing out of a writ of error was commencing a new suit in this court, of which it had jurisdiction, at least so far as the parties were concerned; and the former cases were not overruled. The practice having been settled by them, we are not inclined to disturb it.

The judgment for costs was, therefore, improper and void for want of jurisdiction to render it; and it ought to have been set aside on motion. Sayles v. Davis, 20 Wis. 302; Insurance Co. v. McCormick, id. 265.

There is no ground for applying the doctrine of estop-pel. Parties to judicial proceedings are bound to take notice whether the court has jurisdiction to render any judgment which they ask for against others ; and, if not, they must be held to take such judgment at their peril.

By WCé Court. — The order appealed from is reversed, with costs, and the cause remanded, with directions to grant the motion.

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