Volume 46 — Wisconsin Reports

The complaint alleges, in substance, that on the 28th of June, 1876, defendant, in consideration of a certain premium paid to it by the Appleton Iron Company, one of the plaintiffs, issued to that company a policy insuring it against loss by fire, to the amount of $3,260, on certain lots of wood in Outagamie county; that by said policy defendant agreed to pay the plaintiffs Donkersly, /Smith and Smith the moneys which should become payable upon any loss, to the extent of the…

Action on the official bond of John O'Malley, late treasurer of the town of La Pointe, to recover town moneys which came to his bands as… Held: and was chargeable for, additional balance of. 22,753 71 Total. $25,105 09 That of all said moneys, “ be bas paid over according to law, upon orders made upon him or otherwise in any manner whatever, only tbe sum of $12,466.32, and there remained of said moneys in bis bands as such treasurer, when bis said successor was elected and…

On or about the 1st of July, 1873, Rufus Dodge died, testate, in the city of Beaver Dam in this state, being a resident of said city. Held: used and applied for tbe education and tuition of worthy indigent females, with tbe exception and qualification above provided as to Beloit College. . . .

EmerUne A. Taylor died in 1866, testate, being the owner in her own right of real and personal property valued at about $340,000; and, in December following, her will was admitted to probate in the… Held: however, contrary to the later decisions, that the statute did not apply to charitable devises or bequests. Comparing sec. 55, ch. 1, art. II of the hi.

Action for damages for cutting, carrying away and converting timber. Defendant appealed from a judgment in favor of the plaintiffs. The errors alleged will sufficiently appear from the opinion.

’ Tbe complaint alleges that in 1877, plaintiff and one Charles R. Libby were partners in tbe business of buying and selling household furniture in tbe city of New London; that on tbe 13th of August of that year plaintiff purchased bis said co-partner’s interest in tbe business, for $690, for which be gave Ids three promissory notes, one for $200, due on the 13th of August, 1878, one for $200, due on the 13th of August, 1879, and one for $290, due August 13th, 1880, with…

This action was brought against Paul Weston alone, to enforce a lien pursuant to eh. 153, R. S. 1858, for the price and value of labor performed and materials furnished by plaintiffs in the construction of a dwelling-house on a lot of the defendant described in the complaint. The action was undefended, and plaintiffs recovered the amount of their claim, which was adjudged a specific lien on such dwelling-house and the interest of the defendant in such lot.

<p>CONTRACTS: Liability of parties to contract, for tort to third persons. (1) Contract construed as not a lease of real property, but a contract of hiring. (2) Liability of owner of realty for injuries caused by its defective condition. (3) Query as to rule as betioeen landloi'd and tenant.</p> <p>1. X. and Y. entered into a contract by which S. was to operate, during a certain milling season, a shingle mill, which, at the time of contracting, was “in the possession and under the control ” of Y., and was to manufacture in a specified manner shingles Rom logs to be furnished by Y., and to be paid specified rates per M. for so doing; and he was to hire and pay all the men employed in such manufacture, and furnish certain tools and other articles, not in the nature of fixtures, used in the same, and repair any break in the machinery, the cost of whose repair should not exceed $5 (larger bréales to be repaired at Y.’s expense), and was to load the shingles at his own expense, on the switch of said mill (except that, until a certain side track to the mill should be completed, any expense of such loading beyond a certain maximum was to be paid by Y.). Y., on his part, agreed to put the mill in good running order, and furnish at the mill boom logs suitable for the purpose, in sufficient quantity to keep the mill running during said season, and was to cause to be removed all slabs and refuse timber, so that the amount of the same upon the mill grounds at any time should not exceed a certain number of cords, and was to pay X. on the first of each month the amount due him for manufacturing during the preceding month. Held, that this was not a lease of the mill, but a mere contract of hiring. Jolly v. Single, 16 Wis., 280, distinguished.</p> <p>2. Even if the strict relation of master and servant did not exist between Y. and X., yet, if adjoining property of a third person was injured by fire emitted from the smoke-stack of the mill, and such injury was caused by some defect in the mill existing when X. took possession (and which Y. was bound to remedy), and occurred while X. was using the mill in the manner in which such mills are ordinarily used, and in doing the work contracted to be done for Y., then Y. is liable to the party injured.</p> <p>3. Whether the rule last stated would hold good if the relation of landlord and tenant had existed between Y. and X., not determined.</p>

Foreclosure of a mortgage executed September 21,1874. The action was commenced in October, 1876, the complaint being in the usual form. On the 21st of March, 1877, none of the defendants having appealed, the complaint was so amended as to demand the relief provided for by ch. 143 of 1877; and on the same day judgment for such relief was rendered; from which defendants appealed.

The action is by three school districts against the defendants Edwards to recover a sum of money in their hands alleged to belong jointly to the plaintiffs and another school district, which is made defendant to the action because its consent to be joined as a plaintiff could not be obtained. This is an appeal by the defendants Edwards from an order of the circuit court overruling a demurrer to the complaint.

' The plaintiff appealed from a judgment of the circuit court in favor of tbe defendant. The case is sufficiently stated in the opinion.

Action, (1) to avoid taxes assessed on plaintiff’s property in tbe city of Wausau during tbe year 1875, on tbe ground that there was no valid assessment of tbe property for taxation' during that year; (2 and 3) to avoid taxes assessed on said property during tbe years 1876 and 1877, respectively, upon like grounds; (4) to avoid certain bonds of “School District No. 1, City of Wausau,” and to avoid tbe taxes assessed on said property during tbe years above named, on the…

Action for the value of goods alleged to have been sold to the defendant and delivered at his request to one Eastabrook. The trial was before a referee, upon whose findings and report judgment was rendered in favor of the defendant; and the plaintiff appealed. The errors alleged will sufficiently appear from the opinion.

Action for the conversion of lumber. The plaintiff had a verdict; a new trial was denied; and, from a judgment pursuant to the verdict, the defendants appealed.

Action to set aside an accounting, and to have a new account taken, and for a judgment in plaintiff’s favor for such sum as might be found due him from defendant. Defendant demurred to the complaint: first, for a defect of parties, in that one James Patrick was a necessary party; and, secondly, for insufficiency of facts. The court sustained the demurrer, and plaintiff appealed from the order. The averments of the complaint are somewhat fully set forth in the opinion.

Oroix County. The complaint alleges the following facts: Plaintiff is the owner of certain land therein described, and has owned the same for the last ten years or more. This land was sold by the proper officer of the county in 1870, for delinquent taxes assessed thereon, and the usual certificate of sale was issued to the purchasers.

The defendant appealed from a judgment in favor of the plaintiff. The case is fully stated in the opinion. They argued the following, among other points; 1. Plaintiff bases its claim upon the acts amendatory of its charter.

After the decision of the court in a former appeal herein (44 Wis., 295), the case having been remitted to the circuit court, defendants moved that court to modify the injunctional order previously made, in accordance with the opinion of this court.

The plaintiff appealed from an order changing the place of trial on defendant’s motion. The ground of the appeal will sufficiently appear from the opinion.

Tbe action was brought under section 101, ch. 19, R. S. 1858, to recover the penalty therein prescribed for the alleged willful obstruction by the defendant of a certain public highway in Saule county. A trial resulted in a verdict for the plaintiff. Defendant moved for a new trial on the ground (amongst others) of the misconduct of the jury.

Action brought in this court upon three several causes of action, the nature of which will sufficiently appear from the opinion. The attorney general demurred to each count of the complaint.

Regan brought this case up by writ of error to reverse a judgment of the circuit court against him on a criminal information. The offense charged by the information, and the errors assigned, will sufficiently appear from the opinion.

Action for an injury received by the plaintiff while in the defendant’s employ.

<p>APPEAL from the Circuit Court for Dane County.</p> <p>The defendant appealed from an order, the character of which is sufficiently described in the opinion.</p>

Action for a malicious prosecution. In June, 1877, a peddler in fantastic costume made his appearance in ' a street of the city of Columbus, in a wagon loaded with wares. Held: as a matter of law, that the language addressed by the plaintiff to Hanneman was not wanton or obscene within the meaning of the ordinance under which the prosecution was instituted, and that such prosecution was at an end; and he so instructed the jury.

The case is thus stated by Mr. Justice Tayloe: This was an action to recover the possession of a certain house and lot owned by the plaintiff, and which the defendant occupied as her tenant. The action was commenced in a justice’s court, under the provisions of sec. 12, ch. 151, E. S. 1858.

Action for slander of tbe female plaintiff. The complaint charges that defendant, on etc., contriving and maliciously designing to injure the female plaintiff in her good name and credit, and to bring her into public scandal, etc., etc., and to harrass and oppress her, did on said day, in the presence and hearing of one Horace White and others, maliciously speak of and concerning said plaintiff certain false and defamatory words [which are there set forth], meaning thereby…

Wcehler, one of the defendants herein, having recovered in said circuit court judgment of foreclosure of a mortgage executed to him by one Mary Manger, purchased the premises at the foreclosure sale, and on the same day took a sheriff’s deed thereof.

Replevin. Plaintiff appealed from a judgment of nonsuit. The case is stated in the opinion. 1. The sheriff’s deed should have been admitted in evidence. Sec. 3, ch. 143, Laws of 1877, which controlled the sale, declares that “ the mortgaged premises shall not be sold till one year from the date of the judgment, .... unless all the parties to an action consent to an earlier sale.” (1) The sale was made after the expiration of a full year from the date of the judgment.

The facts of the case, as they appear from the pleadings and evidence, are as follows: The defendant, returning home from a temporary absence, found the son of the plaintiff upon his premises. The defendant’s family were absent, and he claims that he found the boy concealed in his house. He detained the boy, and sent for the plaintiff.

Ejectment, commenced apparently in 1878.1 Defendants claimed under a tax deed recorded, according to tbeir contention, August 8, 1874; and tbe principal questions arising on the trial, and considered by this court, were, whether the deed was ever recorded; and whether, if so, the statute of limitations had run in defendant’s favor. The facts bearing upon these questions are sufficiently stated in the opinion.

Action for rent. Defendants appealed from a judgment in favor of the plaintiff. The errors alleged will sufficiently appear from the opinion. They contended, 1.

Action in the nature of quo wan-ranto, to determine title to an office. The pleadings and evidence, and the errors assigned, will sufficiently appear from the opinion.

<p>Amendment op Pleading: Appeal to Stjpbjsmb Codet. When defective complaint treated, on appeal, as amended.</p> <p>Where a cause has been tried upon the merits, and submitted to the jury upon evidence, received without objection, tending to show a cause of action in plaintiff’s favor, and under instructions to which no exception was taken, a judgment for the plaintiff on a general verdict in his favor will not be reversed on the ground that the complaint omits some averment essential to the cause of action.</p> <p>[Ryan, 0. J., and Lyon, J., dissent from the judgment, holding that the complaint, which was insufficient, might have been amended from the evidence, and under the charge, in either of two different ivays, so as to state two different causes of action; and that in such a case judgment for plaintiff on a general verdict should not be upheld.]</p>

The complaint contains two counts, but the plaintiffs recovered on the first count alone, which is as follows: “ 1.

The plaintiffs appealed from an order setting aside a judgment in their favor against the defendants, and granting a new trial. The facts are stated in the opinion.

Beplevin. After a verdict and judgment for the plaintiff, the court made an order vacating the judgment and granting a new trial. Erom this order the plaintiff appealed. The errors alleged by the appellant, so far as passed upon by this court, will sufficiently appear from the opinion.

Action to recover moneys paid (under protest and to prevent a threatened sale) as taxes upon the personal property of plaintiffs’ testator.

<p>APPEAL from the Circuit Court for Fond du Lae County.</p> <p>The first decision in this cause is reported in 45 Wis., 675. The respondent moved for a rehearing.</p>

ACTION commenced in tbis court, to recover from tbe state the amount of a certain judgment for costs rendered in a court of New York… Held: unredeemed, a large amount of the circulating notes of the Tradesman’s Bank, a banking association under the laws of this state theretofore become insolvent; that Terry, claiming that James T. Soutter of New York was liable on a stockholder’s bond for the redemption of said notes, demanded of the bank comptroller “ to prosecute said…

sha/m County. The plaintiff in error, having been convicted in the circuit court upon an information for larceny, and sentenced to imprisonment in the state prison, sued out a writ of error to reverse the judgment. The errors alleged will appear from the opinion.

The plaintiffs, being the owners of certain real estate and personal property, and being very aged and infirm, executed to the defendant John Bresnahan, their son, a deed of such real estate and a bill of sale of such personal projierty; and at the same time John executed to them his bond for $2,200, in . the condition of which he covenanted, among other things, to maintain and support the plaintiffs during their natural lives in a good, comfortable manner, and to treat them…

Action, commenced in justice’s court July 28, 1877, to recover damages alleged to have accrued to the plaintiff as owner of land upon a natural watercourse, from the maintenance by defendant, upon his premises above those of plaintiff, on the same stream, of a hog-pen and hog-yard, in such a manner as to deprive plaintiff of the proper use of said stream, etc. The complaint alleges that said watercourse is a very small stream, fed by springs immediately above defendant’s…

Replevin. Defendant claimed as sheriff, under an execution upon a judgment against John Elkins and George Beemer, constituting the firm of John Elkins & Co. Certain errors in the instructions, which are relied upon by the appellant to reverse the judgment, will appear from the opinion.

Plaintiffs recovered a judgment against the defendant in justice’s court. The papers having been sent up by the jus- ' tice to the circuit court as upon an appeal by the defendant, plaintiffs moved to dismiss the appeal, and appealed to this court from an order denying their motion. The error alleged will appear from the opinion.

Action for injuries from defendant’s negligence. After alleging that defendant is a corporation and common carrier, and the owner of block 155 in the city of Milwaukee, the complaint proceeds as follows: “ That said block 155 is hounded north and west by the Menomonee Canal; that a certain freight depot is located thereon, and that the same is approachable only on the north and west side of said depot, on a narrow passageway on the dock between the depot and said canal, and…

Action for an amount claimed to be due to plaintiff for labor done and materials furnished under a special contract between the parties, by which plaintiff agreed to lay a “ certain amount of house-drain,” or sewer-pipe, according to certain plans and specifications.

<p>APPEAL from the Circuit Court for Milwauhee County.</p> <p>The defendant appealed from a judgment in favor of the plaintiff. The case is stated in the opinion.</p>

Action to set aside a deed of sixty acres of land from Juliette Watkins, one of the plaintiffs, to the defendant Mary A. Brant. The land conveyed was a part of eighty acres which descended equally to Mary A. Brant and Juliette Watkins upon the death of their father, John C. Erant, intestate. The essential facts of the case will appear from the opinion. Defendant appealed from a judgment in favor of the plaintiffs.

Action to have a certain deed of conveyance, absolute on its face, adjudged a mortgage, and for an accounting between the parties thereto, and for leave to redeem. The court found that the deed was not a mortgage, and rendered judgment dismissing the complaint, etc.; from which the plaintiff appealed.

ee County. Ejectment, for a parcel of land in the 7th ward of the city of Milwaukee. The land claimed is described in the complaint by metes and bounds. It appears from such description that the land is a strip about fifty feet wide, being the east end of lot 1 in block 108 in that ward, and that the same is included within the limits of Riddle and Lake streets, and subject to a public easement for a highway.

Ejectment, for a lot of land in the city of Milwaukee. Plaintiff showed title in himself derived from the United States. Defendant was in possession, claiming to he so as the subtenant of one Adolph Piel. Piel claimed title to the lot by virtue of two tax deeds issued by the treasurer of the city of Milwaukee, both bearing date February 24, 1875, and both recorded in the office of the register of deeds of Milwaukee county, February 25, 1875.

Action by Minnie Gibson against her husband Sewell C. Gibson, for divorce, etc., on the ground of willful desertion; and the appellant, Martin S. Gibson, is also made a defendant.

After overruling tbe defendant’s demurrer to tbe complaint in this action, (ante, p. 449) the court made an injunctional order restraining tbe defendant Martin 8.

The case is thus stated by Mr. Justice Tayloe : “ This action is brought by the plaintiff to recover dower in certain lands in the possession of the defendant. “ The plaintiff bases her claim for dower upon the allegation that she is the widow of one Lewis Williams, Sr., deceased. “ The only question which is seriously litigated is, whether the plaintiff is the widow of said deceased.

Action to recover moneys alleged to have been obtained from plaintiff by defendant, upon a false and fraudulent representation, as for the purpose of paying the same to a third person in the plaintiff’s behalf, and to have been retained by defendant and converted to his own use. The case is more fully stated in the opinion. The plaintiff appealed from a judgment of nonsuit. 1.

On the 20th of December, 1878, this court, on motion of the appellants (the defendants), dismissed the appeal, with costs against the appellants. On the 17th of January following, the respondent moved for an allowance to him of damages for his delay, in addition to interest upon his judgment, and double costs, together with costs of the motion, or, in lieu thereof, for an order reinstating the appeal and for a judgment of affirmance. R. S., 776, see. 2951.

<p>Appeal to Supreme Court. On what papers an appeal from an order will he heard.</p> <p>1. An appeal from an order founded on specified papers gives this court no authority to review the order on different papers.</p> <p>2. Thus, on appeal from an order denying a motion for a new trial founded oil the .judge's minutes, this court cannot reverse the order on the ground that the special verdict on which the judgment is based, is inconsistent with itself.</p>

The caséis thus stated by Mr. Justice Cole: “ The complaint avers a failure on the part of the defendant company to deliver to the consignee three carboys of acid, and alleges that such carboys, through the negligence and default of the agents of the defendant, were broken and discharged.

The complaint alleges that defendant is a common carrier by water on Lake Michigan, and plaintiff is a maker in and manufacturer of galvanized iron building trimmings; that on or about the 20th of September, 1873, plaintiff delivered to defendant certain cornices and brackets for a building, to be delivered, and defendant promised and undertook to deliver the same, at Eseanaba, in the state of Michigan, and plaintiff agreed to pay on such delivery, for the carriage thereof;…

Tbe case is thus stated by Mr. Justice Tatloe: “Action to recover damages for injuries sustained by plaintiff whilst in the employ of the defendant. The injury occurred whilst the plaintiff as a fireman was assisting in running a train of cars on a short line of railroad [in the state of Illinois], extending from its main track to Crystal Lake, a distance •of about one mile.

Action on a bond given by defendant as principal, to secure performance on bis part of a written contract between him and the plaintiff district. By said contract, defendant undertook to furnish all the materials and build a school house for plaintiff, according to certain plans and specifications; to have the walls and roof completed, and the building enclosed, by December 1, 1873; and to fully complete the building by August 1, 1874.

<p>Ceiminal Law: Muedee. (i, 2) When attempted felony, resulting in unintentional hilling, converts such killing into murder. (3) Case stated; verdict set aside.</p> <p>1. On trial of an indictment for murder in the first degree, where the evidence, if it shows that defendant committed the homicide at all, shows also that he intended to cause the death of the person actually killed, and there is no evidence of those facts, in respect to his being engaged at the time in the commission of some other felony, which would convert an unintentional homicide into murder in the third degree, a verdict of murder in that degree must be set aside.</p> <p>2. The felony, attempted or committed, resulting in death, from which the implied malice necessary to murder is derived, must be such that the killing is naturally consequent thereupon.</p> <p>3. In this case, the homicide was of four persons, a mother, her son aged seven years, her daughter aged four, and a female babe seventeen months old. The evidence tended to show that they were all killed, during the night, while lying in two separate beds in the same room, by having their skulls broken with great violence with a hammer, and that the house was then burned down to conceal the crime; and there was some circumstantial evidence pointing to defendant as the criminal. The verdict was of murder in the third degree; and the record seems to show that the jury concluded or assumed that defendant, at the time of the homicide, was committing or attempting to commit either rape upon or adultery with the mother. Held,</p> <p>(1) That neither of these felonies is one torn which the homicides shown by the evidence could result as a natural consequence; hut such homicides and such rape (or adultery) must have been distinct and independent acts.</p> <p>(2) That there is a total lack of evidence that defendant, or other person who committed the homicides, was in fact engaged in committing or attempting either rape or adultery.</p> <p>(3) That the verdict must therefore be set aside.</p>

<p>ON EXCEPTIONS from the Circuit Court for Booh County.</p> <p>The case is stated in the opinion.</p>

On the 20th of December, 1878, George O. Smith made a complaint in writing, under oath, before II. A. Porter, Esq., a justice of the peace in and for Jefferson county in this state, alleging, in substance, that Judd M. Cobb, F. 8.

Action against defendant as one of two indorsers of a promissory note. Payment of the note was not demanded at maturity; but, by way of excusing such, demand, the complaint alleges a promise to pay the note made by the defendant before its maturity. All the facts alleged to excuse a demand and protest at maturity are denied by the answer. There was a special verdict containing answers to twenty-three interrogatories, but no general verdict.

This appeal was taken by the defendant from an order referring the cause for trial, made upon the death of the person named as referee in a former order of reference.

Action for an injury to the persons of the plaintiff and his wife from the upsetting of a carriage in which they wore riding, caused by the defective and obstructed condition of a public street in said city. The essential averments of the complaint are stated in the opinion.

Action for injuries to the plaintiff’s person alleged to have been caused by the defective condition of a plank platform, or bridge, over tbe gutter, forming part of a cross-walk or crossing running from the Fourth ward market to the sidewalk on the west side of Second street, in the city of Milwaukee.

This action was commenced before a justice of the peace by attachment. The affidavit for the writ is in due form. It was made by an agent of the plaintiff, and, as one of the reasons why it was so made, it is stated therein that the plaintiff is not a resident of this state. The property of the defendant was seized by virtue of the writ, and the writ was duly and personally served upon him by a proper officer.

<p>APPEAL from the County Court of Milwaukee County.</p> <p>The case is stated in the opinion. The defendant Orilley appealed from a judgment in favor of the plaintiff.</p>

The verdict was special, in answer to nine interrogatories, and found the following facts: That plaintiff’s and defendant’s wagons collided at the village of Hustisford; that [in consequence of such collision] plaintiff’s horse fan away, and plaintiff was injured in his person; that defendant did not exercise ordinary care in passing plantiff’s wagon, but was driving with a loose line and in a careless manner, and not keeping a sufficient distance from plaintiff’s wagon,…

Replevin. . Plaintiffs, dry goods merchants in the city of Oshkosh, took a lease of defendant’s store for their business, the lease being in writing, in the usual form, with no provision in regard to fixtures. There was conflicting evidence as to an oral agreement between the parties, before and at the time of the making of the lease, that plaintiffs might put up shelving and remove it by the end of the term.

Action upon a check made in the firm name of ~W. H. Ballou & Co., running to J. M. Rollins & Co., or bearer. The plaintiffs constitute the firm of J. M. Rollins & Co. The defendant Bussell was a member of the firm of W. H. Ballou & Co., and was also cashier of the bank upon which the check was drawn; and as such cashier he refused to pay the check when presented.

The parties were the respective owners of two adjoining lots in the city of Oshkosh, and they executed a contract in writing concerning a party wall to be erected on the line between the lots. The instrument was drawn as a contract between the plaintiff and one Cameron of the first part, and the defendant of the second part.

A somewhat full report of this cause, as presented on the first hearing, will be found in 43 Wis., 471-478. After the decision there reported, a rehearing was granted on respondent’s motion; and the cause was again submitted on briefs of HJ. B. Jackson for respondent, and Gharles W. Felker for appellant.

Action on a promissory note of A. J. Yan Doren, J. D. Yan Doren, and I. O. Van Doren. Plaintiff had a verdict and judgment against all the defendants; and the defendant I. 0. Van Doren appealed from the judgment. The facts upon which the question of the appellant’s liability turned, are stated in the opinion. 1. Any material alteration of a note, whether for the better or for the worse, terminates the liability of the maker not consenting to it.

The action was brought under ch. 160, R. S. 1858, to try the right to the office of school district clerk. The relator claims in his complaint that he was duly elected to the office, and is entitled thereto; and alleges that the defendant has usurped and intruded himself into such office, and unlawfully exercises the same, and withholds the books and papers pertaining thereto from the relator. The judgment demanded is, 1.

Action to recover damages for the failure of the defendant, as sheriff of Fond du Lac county, to collect an execution duly issued on a j udgment recovered by the plaintiffs against the Fond du Lac Threshing Machine Company, in the circuit court for that county. The complaint alleges the official character of the defendant, the recovery of the judgment, the issuing of an execution thereon, and the delivery of the execution to the defendant, April 25, 1876.

The case is thus stated by Mr. Justice Taylob: “The material allegations of the complaint are, that the plaintiff owned a certain described lot in said city in the year 1869, and continued to own it until 1873; that there was a dwelling house on the lot; and that in 1869 the defendant company built the track of their road along the center of the street in front of said lot, and erected an embankment and dug ditches along the line of their track in said street, and continued…

The case is thus stated by Mr. Justice Tayloe: “ This case was originally commenced in a justice’s court. After judgment for the plaintiffs in that court, they appealed to the county court of Winnebago county, making the necessary affidavit to entitle them to a new trial in such court. The return of the justice was filed with the clerk of the county court on the eighth day of February, 1878.

Action for injuries to the plaintiff’s horse, buggy and harness, alleged to have been caused by negligence of defendant’s servant, while driving a horse and wagon belonging^to the defendant, in a public street in the city of Milwaukee. There was a special verdict, consisting of answers to sixteen interrogatories, and no general verdict.

<p>SupREme Court. (1) How long this court retains jurisdiction of appeal. (2) Replacing appeal on calender after affirmance under the rule.</p> <p>1. This court retains jurisdiction of an appeal during the time limited by the statute (R. S., sec. 8071) during which the record remains here after judgment rendered here, even though the term of judgment has expired.</p> <p>2. After an affirmance under the rule, for nonappearance of the appellant, a motion made within the sixty days to replace the appeal on the calendar, is granted on terms (as being in the nature of a motion for a rehearing, Bonin v. Railway Co., 43 Wis., 210), on its being shown'that the failure to appear arose Rom a misunderstanding between the counsel of the respective parties.</p>

Action for moneys advanced for wheat to be delivered by the defendant. There was a counterclaim by the defendant, and a reply in denial. The cause was sent to a referee for trial. A large amount of evidence was talcen before the referee, which seems to he all preserved in the hill of exceptions, together with the exceptions taken before the referee to his rulings upon the admission of evidence.

Action for trespass in throwing down a fence upon plaint-' iff’s-premises. Answer, that the locus was a highway. Verdict, that defendant was not guilty of the alleged trespass. A new trial having been denied, and judgment entered upon the verdict, plaintiff appealed therefrom.

Margaret Wood, the plaintiff herein, was married to John H. Wood in 1862, and was divorced from him June 8, 1875, by a decree of the circuit court above named, which transferred and allotted to her the title and interest of John H. Wood to and .in certain lands described in the complaint in the present action.

This action is brought in equity by the members of the firm of Samuel Meyers It is alleged in’the complaint, that the plaintiffs are partners, and the defendants are husband and wife; that Mrs. Halite inherited and received real and personal property from the estate of her deceased father; that for two years last past she has carried on the business of a retail liquor dealer and saloon keeper, as a sole trader on her own account, with the capital and on the credit of her…

The case is thus stated by Mr. Justice Tayloe: This action was brought to recover the possession of a piano which plaintiff alleged he was entitled to the possession of, and the defendants unlawfully detained.

Action upon a policy of insurance against fire. There was a special verdict, the essential parts of which are recited in the opinion. There was also a general verdict for the plaintiff. Successive motions by the defendant, for a new trial, and for judgment in its favor upon the special verdict, were denied; and judgment was rendered for the plaintiff, from which the defendant appealed.

Foreclosure of a mortgage. Tbe defendants John 11. Thornton and Ellen Thornton, bis wife, and Thomas Windiate and Cornelia Windiate, bis wife, answered that tbe premises covered by the mortgage were at the time tbe instrument was made, and still were, the homestead of said John R. and Ellen Thornton, tbe alleged mortgagors; that tbe persons who subscribed tbe mortgage as witnesses were not present at tbe signing of tbe mortgage by tbe alleged mortgagors; that they never…

Foreclosure of a mortgage executed by Christian Koebke and wife. The mortgagors did not defend. The defendants Julianna Huebner and her husband, F. W. Huebner, second mortgagees, answered, setting up the defense of usury in the note secured by the mortgage here in suit.

The plaintiffs are husband and wife, and brought this action, to recover damages for an injury to the plaintiff wife, alleged in the coinplaint to have been caused by a defective sidewalk in a public street of the defendant city, in front of and adjoining lot 22 in a certain block therein. The nature of the defect in the sidewalk, the manner in which the injury was inflicted, and the special damages suffered thereby, are particularly stated in the complaint.

The case is thus stated by Mr. Justice Tatloh: “ This is an action to recover on an account for medical services and medicines. The complaint was duly verified, and served with the summons.