Volume 35 — Wisconsin Reports

This action was commenced May 15, 1871, to recover lot 124 of the Stockbridge Reservation in the county of Calumet. The complaint is in the usual form.

c County. Upon the affidavit and petition of the relator, the judge of the Fond du Lac circuit court, at chambers, granted' a writ of certiorari addressed to the common council of the city of Fond du Lac, commanding them to certify to said court, at its then next general term (commencing _in September, 1878), all the acts and proceedings of said council touching the laying out of a new street between Forest and Second Streets in said city, and all resolutions, orders, and…

Action to recover damages for the flowage of plaintiff’s land, alleged to have been caused by the erection and maintenance of defendant’s darn across the north channel of the outlet of Lake Winnebago.

The complaint alleged that a certain tract of mining land, comprising forty acres, was the property of Nelson Dewey; that one Turley was the agent of Dewey in charge of the land, and empowered to make contracts with miners for working it; and that Turley, by a verbal contract with plaintiffs, gave them the sole right to mine for lead ore in a certain part of said tract, upon the following conditions, viz: Plaintiffs were to begin work at the bottom of a hole already sunk…

APPEAL irom the Circuit Court for Grant County. Held: governs as to the jurisdiction of justices in actions upon notes, and which limited the same to $100. Felt v. Felt, 19 Wis., 193; Howard v. Mansfield, 30 id., 77. The note in this action was certainly given for more than $100.

Action to recover damages for the alleged malicious prosecution of the plaintiff on complaint of the defendant, in a criminal action for assault and battery commenced before a justice of the peace. The facts proved on the trial, and some of the instructions given the jury, appear in the opinion.

On May 20, 1872, the plaintiffs recovered judgment in- the circuit court for La Crosse county, against the Southern Minnesota Railroad Company, for $15,159.58. Held: the garnishee was in possession of all the facts set up in the proposed answer, and had no right to answer in any other manner than that prescribed by the statute.

The only question presented in this case, is upon an exception to the charge of the circuit judge, which is sufficiently stated in the opinion. The plaintiff obtained judgment in the circuit court, and the defendants appealed. This is not a case for exemplary damages, and the true measure of damages is the value of the timber cut and interest to the time of trial. .

This action was originally brought and tried in justice’s court.

This action was commenced February 28, 1873. The complaint alleged, in substance, that on the 26th of November, 1872, plaintiff agreed with defendants to work for them (as ox-teamster and cross-cut sawyer) for a term of four and a half months, at the rate of $20 per month, pajmble at the expiration of said term of service; that plaintiff, in pursuance of said agreement, worked faithfully for defendants for seventy-seven days according to the terms of said contract, and such…

Action in the nature of quo warranto, to determine the title to the office of county judge. Held: as matters of law, that the town of Isabelle had not been vacated, but was at that time a town, and the election held therein was legal, and that the fifteen votes were legal, and should be counted for respondent. Judgment for the respondent; from which this appeal was taken. 1.

Action for the unlawful seizure and conversion by the defendant, sheriff of Eau Claire county, through his deputy, and under color of his office, of a steamboat with its tackle and furniture, the property of the plaintiff. The complaint demands damages for the value of the property and for the loss caused plaintiff in his business by the seizure.

The following statement of facts in tbis case was originally prepared by Mr. Justice Cole as a part of Ms opinion: “.The .firm of McGilton, Bracklin & Co., being largely in debt, with the consent of a portion of their creditors, made an agreement with the defendant in writing, by which they put their entire personal property, and the use and control of their mill and other real estate, into the possession of the defendant, with the power to saw up their stock of logs, and to…

Action to recover for money alleged to have been • lost to plaintiff, through defendants’ negligence,'while the former was stopping as a guest at the inn alleged to have been lcept by defendants as partners. The defendants, in their answer, and also by affidavit, denied the allegation of partnership, but admitted that at the time plaintiff is alleged to have lost his money, Cyril Cardinal, one of the defendants, kept an inn.

Action for the alleged conversion by defendant of a receipt given by the state treasurer and secretary of state, at a sale of forfeited school lands, entitling defendant to certificates for the land upon return of the receipt to the office of the secretary of state, and also for the alleged conversion of the school land certificates. The complaint contained two counts, one for the conversion of the receipt, the other for the conversion of the certificates.

This was an action of forcible entry and detainer, brought in justice’s court, where plaintiff had judgment; and defendant appealed to the circuit court.

Action for a partition of certain land in La Payette county, commenced in that county, but removed by change of venue to Dane county. The complaint alleged that the plaintiff owned an undivided three-elevenths of the land, and the defendant an undivided eight-elevenths.

Action for slander. The complaint states five counts or causes of action, cbarging the speaking of the same words, substantially, but at different times, and in the presence and hearing of different persons. The introductory averments and the innuendoes are the same in each. Hence, a perusal of one count will show the structure of the whole complaint.

Action to recover an unpaid balance of the contract price for a quantity of lath sold by the plaintiff to the defendant company.

Richard McDowell brought his action against Laev to recover the indebtedness originally due to plaintiff from one Hall, but which Laev had agreed to pay in a written agreement under seal, entered into between himself and Hall.

Before the enactment of cbap. 132, P. & L. Laws of 1871, tbe town of Black Creek in Outagamie county consisted of townships 23 and 24 north, of range 17 east, and school district No. one therein extended the whole length of the town, being twelve miles long, north and south. The act of 1871 detached township 24 from Black Creek, and constituted it a separate town, to be called the town of Cicero.

Action under the mill-dam act. The complaint alleges that the plaintiff is the owner in fee simple of lots one (1) and two (2) of section one (1), town seven (7), range fourteen (14), in Jefferson county, and that said lands are flowed and damaged by means of a certain mill dam across Eock Eiver below said lands, maintained by the defendants without any authority therefor other than is conferred by an act of the legislature, entitled “ an act to authorize the construction of…

• This was a mechanic’s lien proceeding under the statute. The circuit court dismissed the complaint for want of jurisdiction, because of the pendency of proceedings in bankruptcy against the owner of the building; and plaintiff appealed. The facts appear in the opinion. argued that this was purely a statutory action, and the remedy must be taken upon the terms of the statute, or not at all. Arnet v. Milwaukee Mechanics' Mut. Ins.

ARPEAR from the Circuit Court for Waukesha County. Action to recover $1,063.45, claimed to be due for labor and materials furnished in constructing a dwelling and barn for the defendant, .and to enforce a mechanic’s lien for that sum.

The action was brought against the testator in his life time, to recover an unpaid balance of about three thousand dollars, alleged to be due the plaintiffs on account of stone and stone work furnished by them in 1867 and 1868, for a hotel erected by the testator in the city of Pond du Lac, and known as the “ Patty House.” The original defendant died during the pen-dency of the action, and the suit was duly continued against the executrix and executor of his last will and…

Action for the recovery of damages alleged to have been sustained by plaintiff, a mill owner, on account of defendant’s withholding the usual supply of water from his reservoir situated above plaintiff’s mill; and also for an injunction. Plaintiff claimed a prescriptive right to the flow of water from defendant’s reservoir, growing out of twenty years user. The allegations of the complaint are fully stated in the opinion.

The plaintiff brought his action to recover of the defendant for necessaries furnished by plaintiff to defendant’s wife. It appeared in evidence that defendant’s wife left bis house in destitute circumstances, and went to plaintiff’s house, where she was boarded for several weeks and taken care of during her confinement. Plaintiff’s claim for board, nursing and other services was $50.

Action for an alleged trespass committed by defendants October 21, 1871, upon land of which plaintiff claimed right of possession, with actual possession and title in fee simple The- answer of the defendant Henry denied plaintiff’s title, and charged that one Stephenson was the owner in fee simple and entitled to the possession; that Stephenson had been the owner and in actual possession of the land since 1857, and the parties from whom he derived title had been the owners…

This was an action brought to enforce a verdict obtained in a former action between the same parties under the mill-dam act. That verdict is set forth in the opinion in the present case. The jury found specially that the defendants had not paid the sum of $800, the amount awarded by said former verdict, and that the dam used by defendants was the same in height, and in all respects produced the same damage to plaintiff’s land, as found by the former jury.

Action to cancel certain tax certificates held by the defendant county upon lands owned by the plaintiff in said county.

Action to enforce a lien upon certain logs of the defendant claimed by the plaintiff to have been received and stored by it at defendant's request in its boom near Wausau in the Wisconsin River. The answer of the defendant denied the indebtedness claimed by the plaintiff, and also denied that the company had stor.ed any logs for him in the boom as alleged in the complaint, or that he had ever requested the company to receive or store any therein.

MOTION, in this court,'to offset a judgment for costs in defendant’s favor against a like judgment in plaintiff’s favor, rendered here on appeals in two cases between them. 34 Wis., 453, 470. [No brief on file], contended, 1. That a motion could not be made in this court affecting a judgment of the circuit court. Taylor v. Williams, 14 Wis., 155. 2.

The case came on for trial in the circuit court upon the appeal of plaintiff from the disallowance of a portion of his claim presented to the county board of supervisors. Plaintiff was sheriff of Brown county, and in that capacity received a warrant for the arrest of a person charged with larceny.

The charter of the city of Hudson provides for the election therein of a police justice who shall hold his office for two years.

Martin was tried at the October term, 1870, of the Racine county circuit court, upon an indictment for the murder of one West, and was found guilty of manslaughter in the second degree; but the verdict was set aside, and a new trial ordered, on the ground that one of the jurors was not impartial.

This case was commenced before a justice of the peace, by complaint which charges in writing, under the oath of the complainant, that u Z. H. Taylor did, on the 25th day of July, 1873, at the town of Waupun in the county of Fond du Lac, use a certain building heretofore erected, for the purpose of a slaughter house, and used the same for slaughtering, and did, at the time aforesaid, slaughter therein, and that said building was, at the time and place aforesaid, so used as a…

CERTIFIED from the Circuit Court for Milwaukee County. The record in this case is no longer on file in this court. The facts bearing upon the change of venue from the municipal to the circuit court will sufficiently appear from the opinion. contended, among other things, that the cause was not certified to this court according to law(Tay.

The case is stated in the opinion. argued, 1. That the information against Julia Nichols was insufficient because it did not conclude “ against the peace and dignity of the state of Wisconsin” (Const, of Wis., art. VII, sec. 17; Williams v. The Slate, 27 Wis., 402); and the principal not being properly charged, the information against the alleged accessary must fail. 2.

The town of Byron was indicted for neglecting to repair a public highway at a certain point on the line between said town and the adjoining town of Eden ; and a verdict of guilty was found, and judgment rendered thereon, which the defendant town brought to this court for review, by writ of error.

REPORTED from tbe Eleventh Judicial Circuit. The case comes to this court on the report of the judge of the eleventh circuit, made pursuant to the statute. R. S., ch. 180, sec. 8 (Taj. Stats., 1946, § 8). The defendant was tried for an information against him for murder, and was convicted of murder in the third degreee.

Action for libel. The complaint, after some prefatory matter, alleges that on or about the 18th of March, 1866, during the session of the legislature of this state for that year, the defendant, at the city and county of Milwaukee, did maliciously publish and cause to be published, in the G-erman language, in a newspaper printed and published in said city, called the “ Banner and Yolksfreund,” of and concerning the plaintiff, and of and concerning his official action as a…

The action is brought to recover damages for the conversion by the defendant, David G. Fairbanks, of twenty-six lumber -wagons, the property of the plaintiffs, which (it is alleged) had been delivered to the defendant to sell on commission.

Action for trespass to plaintiff’s close, in breaking down bis fence. Answer, that the locus in quo was a public highway.

The complaint alleges that on or about the 2oth of November, 1870, the plaintiff Absalom A. Townsend, and one Addison A. Townsend, were engaged in mining for lead ore on certain land in the town of Shullsburg, in said county, and the defendant was the owner or occupant of certain adjoining land ; that defendant, being desirous of mining for mineral on his said land below the common water level, then entered into an agreement with said Absalom A. Toionsend and Addison A.…

<p> Record on Appeal. </p> <p>On appeal from a justice’s judgment for less than $15 damages, the cause being heard in the circuit court on the original papers and return of the justice, which must contain all the material evidence and the rulings of the justice, such return becomes a part of the record; and, on appeal to this court, it is included in the judgment roll, and no bill of exceptions is necessary to enable this court to review questions arising upon the evidence.</p>

Action to try the relator’s title to the office of treasurer of Marathon county, for the term of two years commencing on the first Monday of January, 1873.

Action to recover for certain work alleged to have been done by the plaintiff for the defendant, The City of Janesville, in the improvement of North Main Street, one of the public streets in the second ward of that city.

<p> Right of court to appoint its own janitor. Control of rooms in the state cap-ítol. </p> <p>1. It is a power inherent in every court of record, and especially one of last resort, to appoint necessary assistants charged with the care of its rooms, and other like functions; and the court itself is to judge of the necessity; and it is doubtful whether the court could be deprived of this power by an act of the legislature.</p> <p>2. Under sees. 13,14, ch. 10, R. S., it seems that the rooms in the state capital occupied and used by the state officers, including the rooms of the justices and officers of the supreme court, are subject to the exclusive control of the officers occupying them; and that the superintendent of public property has no authority to interfere with or control such rooms, and can send workmen to clean, repair or improve them only at the request or with the consent of the officers to whose use they are appropriated.</p> <p>3. The power to remove or appoint th a janitor of the supreme court is possessed by the court; and an order of the superintendent of public property purporting to remove a janitor previously appointed by the court, is held void.</p> <p>4. Should the superintendent of public property omit from the pay-roll the name of the janitor so holding by appointment of the court, so that his compensation cannot be paid to him monthly as heretofore, and should the legislature neglect to make the requisite appropriation for the pay of such janitor, the latter will have his remedy by action against the state in the manner prescribed by law.</p>

INFORMATIONS for Writs of Injunction. These were informations filed in this court July 8, 1874, by the attorney general of this state, acting for the state, praying for writs of injunction to restrain the two defendant companies from exacting tolls for the carriage of passengers or freight in excess of the maximum rates established bych. 273, laws of 1874.

This action was originally brought in justice’s court, and was tried by a jury on the 7th of October, 1873. Verdict for plaintiff for $55 damages, upon which judgment'was entered against the defendants, with costs.

The plaintiffs are dealers in wine in the city of New York, and the defendant is the proprietor of a beer garden in the city of Milwaukee. In April, 1871, the defendant gave the plaintiffs a verbal order for a quantity of wine. He claims that he ordered but one caskj while the plaintiffs claim that he ordered three casks, two of which were to contain 160 gallons at $1.60 per gallon, and the third was to contain 80 gallons at two dollars per gallon.

Action to vacate and discharge certain judgments against tbe plaintiff, Louis Dietrich.

The complaint avers that the plaintiff “hath an estate, and is the owner in fee simple, of, in and to, the following described real estate [describing it], and is entitled to the possession thereof, and that the defendants * * * unlawfully claim to be the owners in fee simple, thereof, and title thereto, to the damage of the plaintiff. • Wherefore the plaintiff prays for the judgment of this court against the defendants that they do forthwith surrender said unlawful claim of…

Ejectment. A former decision of this court in the.same' cause, on appeal from a judgment of nonsuit, is reported in 30 Wis., 170, 178. The original answer contained: 1. A general denial. 2.

Action to foreclose a mortgage on real estate, givea to secure tbe payment of a promissory note.

. This action was originally brought and tried in justice’s court, where plaintiff obtained a judgment, from which defendant appealed to the circuit court.

Action to cancel a deed, executed by plaintiff and wife, November 21,'1872, purporting to convey land to defendant.

This was an action upon a receipt given by the defendants to the plaintiff, as marshal of the village of Waupun, for goods levied upon by the latter by virtue of a writ of attachment against the property of the defendant Hollister. The summons was served on the defendant Keyes, but not upon Hollister, who made no appearance in the action.

Action commenced in justice’s court to recover .damages alleged by plaintiff to have been suffered by him through the maintenance of certain lime-kilns by defendant, and the burning of lime therein, upon lands adjoining plaintiff’s residence, in consequence of which noxious and noisome gases, vapors, smoke and cinders were carried over upon plaintiff’s premises, to his great annoyance and detriment. Answer, a general denial.

Action for injuries to plaintiff’s person, alleged to have been caused by the negligence of defendant in running its cars, and in the improper construction of a railroad crossing upon a highway leading out from the city of Watertown. The locus in quo was the same, and the circumstances of the injury were very similar to those in Duffy v. The Chicago & Northwestern Railioay Company, reported in 82 Wis., 269.

The case made by tbe complaint is as follows: On tbe 21st of October, 1869, one Samuel Bridge, the father of the plaintiff, died seized of a certain lot of land in the city of Oshkosh, containing less than one-fourth of an acre.

. Action to compel a conveyance of lands. Held: 1st. That the plaintiff was entitled to judgment that the covenants ol war ranty in her deed to John Gross be canceled. and discharged, and that the said deed stand only as a quitclaim deed conveying all the interest which plaintiff had in the lands at the time of its execution, and nothing more. 2d. That the defendant John Gross…