Hiles v. McFarland

Decided December 15, 1851

Wisconsin Supreme Court · decided 1851-12-15

Hiles brought an action of replevin against McFarland and Kingsbury for certain goods and chattels, the writ having been made returnable at the September term, 1850. It was returned to the clerk’s office before term, July 27,1850, with an indorsement by the sheriff that he had replevied the property in question ; but that the defendants were not to be found, and had no place of residence in his county.

Decided 1851-12-15

Per Curiam.

¶1The judgment in this cause must be reversed. The following points are decided:

¶2I. There is no judgment of discontinuance or of nonsuit on the record, though it is conceded one or the other was entered at the circuit.

¶3II. Judgment of discontinuance, and not nonsuit, is the proper judgment, in case the plaintiff has not filed his declaration in the time prescribed by statute.

¶4III. An alias writ of replevin may issue, and be directed to the sheriff of any county, other than'that in which the suit is brought.

¶5IV. The plaintiff is not bound to declare until there has been a personal service or an appearance.

¶6V. The circuit court has power, after such judgment of discontinuance, to vacate it for cause.

¶7Judgment reversed.