Volume 61 — Wisconsin Reports

<p>APPEAL from the Circuit Court for Ashland County.</p> <p>The facts are stated in the opinion.</p>

<p>Special proceeding— Compelling delivery of bóoles and papers of public officer — Appealable order.</p> <p>The term “special proceedings,” in subd. 2, sec. 3069, R. S., is used as defined in secs. 2593-96. A proceeding under ch. 43, R. S., to compel the delivery of books and papers of a public officer to his successor, being before a judge and not in the court, is not such a special proceeding, and the order made therein is not appealable.</p>

The plaintiff, the publisher of a newspaper in Clark county, presented to the county board his claim for the publication of a list of unredeemed lands which had been sold for taxes, together with the notice prescribed by sec. 1170, E. ‘S. The claim was disallowed and the plaintiff appealed to the- circuit court. Upon the trial in that court the plaintiff had a judgment, and the defendant appealed therefrom. Other facts will sufficiently appear from the opinion.

The action was originally brought to recover the amount claimed to be due on two promissory notes of the defendant, held by the plaintiff bank. One of these was for $1,000, on which a payment of $141.44 was admitted, and the other was for $330. After the action was commenced, the parties agreed that the $141.44, which was indorsed on the $1,000 note, should be applied upon the $330 note instead,, which was done, and the defendant paid the. balance of that note.

The case is stated in the opinion. He contended that the affidavit was insufficient because it was not made by the appellant and did not purport on its face to be made by any person authorized by him. The words “ attorney for the above-named defendant and appellant” are mere deseriptio personae, and the sufficiency of the affidavit should be determined as if they were omitted. Merritt v. Beaman, 6 H. Y. 168; Sheldon v. Hoy, 11 How.

Action to recover the sum of $300 claimed to be due to the plaintiff upon an order in his favor drawn by one Peterson upon the defendant and accepted by the latter. The order, as accepted, was payable out of the first moneys due to Peterson on lumber account. The defense was that no moneys became due to Peterson after the acceptance of the order. The cause was tried without a jury.

Replevin. The facts sufficiently appear from the opinion. The defendant appealed from a judgment in favor of the plaintiff.

The case is thus stated by Mr. Justice Cassoday: “ This action was commenced in the circuit court for Jackson county in July, 1881, against the defendants jointly, upon a contract made by the defendant Foster alone, and which the defendant Richardson assumed and agreed to perform. The defendants answered jointly, and the cause was tried, and a verdict and judgment rendered in favor of the plaintiffs at the September term, 1881.

The cause was before this court upon a former appeal and is reported in 59 VVis. 631. From that report and from the opinion herein the facts sufficiently appear. This appeal is by the defendants from an order permitting the filing of an amended complaint. They argued, among other things, that even the town itself was not liable for the consequences of an error of judgment in the selection of a flan for the work; and a fortiori the defendants are not liable. Dillon on Mun.

This is an appeal from an order overruling a demurrer to the complaint in the action.

The case is stated in the opinion. There was a verdict for the plaintiff, assessing his damages at $1,000, and from the judgment entered thereon the defendant appealed. They argued, among other things, that the entry of a nolle prosequi, particularly if done by or under an order of the court allowing it, is such a termination of a criminal action that an action for malicious prosecution can be maintained.

The case is thus stated by Mr. Justice Cassoday: “The plaintiffs, as owners of certain lands in Lincoln county, a portion of which were particularly described as being in what was known and called the town of Merrill, and another portion in what was known and called the town of Ackley, and the remainder in what was known and called the town of Pine Eiver, brought this action in April, 1882, to have the taxes assessed on said several pieces of land for the year 18S1 adjudged…

The cause was before this court upon an appeal from an order overruling a demurrer to a counterclaim, and is reported in 56 Wis. 73. After the decision on that appeal the cause was tried, and at the close of the plaintiff’s testimony a nonsuit was granted. From the judgment entered accordingly the plaintiff appealed.

The plaintiff’s cattle went upon the railroad track of the defendant company, and were run over by a passing train. Three of them were killed and another was injured. This action is to recover damages therefor. The undisputed facts, as shown by the pleadings, evidence, and special findings, are as follows: The plaintiff resides in or near Centraba, within one hundred feet of the defendant’s railroad leading from Tomah to that place.

The following statement of the case was prepared by Mr. Justice Tayloe, as a part of the opinion: This is an equitable action brought to compel the defendants to convey to the plaintiff the legal title to 160 acres of land which, it is claimed, equitably belongs to him. The undisputed evidence shows that the legal title to the lands in controversy, at the time of the commencement of the action, was in the defendants, as the grantees of one George ~W. Eansone.

Ejectment. The plaintiff claimed title under a tax deed issued upon a sale for the taxes of 18FT. The defendant claimed, among other things, that the tax deed was void for uncertainty in the description of the land, and that while the tax certificate was still the property of the county he bad fully redeemed the premises from the sale. The court directed a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed.

The case is thus stated by Mr. Justice Cassoday : “ The deceased left a will, which was admitted to probate November 1, 1881, and in which Thomas Welch was named as executor.

The defendant Hewitt appealed from a judgment of the circuit court adjudging that the plaintiff have and recover from the defendants, McCurdy and Ilewiti, the sum of $205.75, damages, together with the sum of $75.10, costs and disbursements in the action; and that said sum is a lien on a certain lot of saw-logs and timber. The facts sufficiently appear from the opinion and from the arguments of counsel. They contended, inter alia: 1.

The case is stated in the opinion. To the point that the affidavit was sufficient, they cited: Drake on Attach, secs. 102, 105; Morrison v. Fake, 1 Pin. 133; Elenk v. Schwalm, 19 Wis. Ill; Blum v. Davis, 56 Tex. 423; 22 id. 209; 59 id. 282; 42 Ind. 121; 28 Wis. 334; Broom’s Leg. Max. 627.

APPEALS from the Circuit Court for Taylor County. Actions to recover the purchase price of goods, wares, and merchandise sold and delivered to the defendant. The facts sufficiently appear from, the opinion.

Action to foreclose a mortgage of the S. W. J of the ET. E. J of section 9, township 23, range 13 East, in Waupaca county, given by the defendants Chester Cook and Sophia Cook, his wife, to the plaintiffs. The facts sufficiently appear from the opinion.

The case is thus stated by Mr. Justice Cassoday: “This action is for the value of a cow killed June 14, 1882, by a passing locomotive of the defendant on its railroad, at a point about 2,300 feet northwest of the defendant’s depot, in the village of Plover. It was originally brought in justice’s court, and taken to the circuit court on appeal. “ The railroad had been in operation for more than three months, but had not been fenced at the point where the cow was killed.

■ December 11, 1875, the plaintiff recovered judgment before a justice of the peace against the defendant, for $40.17 and costs, and on the 20th day of the same month presented a transcript thereof, made by the justice in the form prescribed by the statute, to the clerk of the circuit court of the proper county, who forthwith filed the same in his office and docketed such judgment as required by law. E. S. 1858, ch. 120, secs. 170-174.

Ejectment for certain lands in sections 14, 23, and 24, township 27 North, range 2 East, in Marathon county. The facts sufficiently appear from the opinion of the court and the dissenting opinion by Mr. Justice Cassoday. The answer alleged, among other things, that the action was commenced February 6, 1882, and was barred because not commenced within the time limited by sec. 4, ch. 22, Laws of 1861.

<p>Criminal Law and Practice. (1, g) Abandonment of children: Proof of marriage: Evidence of intent. (3,4-J Instructions to jury: Exceptions.</p> <p>1. In an action under ch. 200, Laws of 1883, it must be shown that the children abandoned are the legitimate children of the accused; but the marriage of the accused need not be proved by the certificate of the person performing the ceremony nor by the record; and the fathership of the children may be admitted by the accused on the trial.</p> <p>2. Evidence of the conduct of the accused toward his family after the time of the alleged abandonment is admissible to show his intent at that time.</p> <p>3. Exceptions to the refusal of the court to give instructions asked must be taken at the trial, or they will be deemed to be waived.</p> <p>4. An instruction which assumes facts of which there was no evidence may properly be refused on that ground.</p>

Croix County. The case is thus stated by Mr. Justice Cassoday : “ This is a prosecution for the murder of George Miles, in March, 1882, at Hudson, Wisconsin.

The defendant’s intestate died in March, 1881. The plaintiff, Elizabeth Repp, presented to the proper county court a claim against his estate, founded upon a promissory note for $1,000,'signed by the intestate, dated December 27, 1880, and payable to her five years after date, without interest.

<p>APPEAL from the Circuit Court for St. Croix County.</p> <p>The case is stated in the opinion.</p>

Action for personal injuries received by the plaintiff' while in the employ of the defendants, The Chicago c& Northwestern Railway Company and The Chicago, St. Paul, Minneapolis & Omaha Railway Company. The facts are sufficiently stated in the opinion. At the close of the plaintiff’s testimony a motion for a nonsuit was granted, and from the judgment entered accordingly the plaintiff appealed.

Action to recover damages for the death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant company. The circumstances of the accident are stated in the opinion. The jury found a special verdict as follows: 1. Was tíhe deceased, Randall Pease, a brakeman in the employ of the defendant upon a passenger train of the de5 fendant? A. Yes. 2.

The action is for slander. The complaint charges, in the usual form, that, in the presence and hearing of divers other persons, the defendant maliciously spoke of and concerning the plaintiff, certain false and defamatory words therein stated. The answer of the defendant admits the speaking of the words charged, but alleges that they were true. Also, that the defendant had good reason to believe and did believe they were true.

The case is stated in the opinion. There was a verdict in favor of the plaintiff, and from the judgment entered thereon the defendant appealed. contended, inter alia, that as it is undisputed that the plaintiff never had possession of the property in dispute, and there is no pretense that at any time the defendant took possession from her, the defendant is not estopped to question her title or right to the possession, even if the relation of landlord and tenant did exist…

<p> (1) Service of summons: Order for publication: Complaint must be filed. (2) Notice of motion construed. (8J Attachment before service or publication of summons: When vacated: Delay. </p> <p>1. Under sec. 2640, R. S., the complaint, duly verified, must be filed in the office oí the clerk of the circuit court before an order for the publication of the summons can be made.</p> <p>2. Notice of a motion “for an order vacating and setting aside the judgment entered in said action, and all proceedings therein, ” is construed to refer to all proceedings in the action, and not merely to proceedings in or subsequent to the judgment.</p> <p>3. A writ of attachment may issue and be served in an action against a nonresident or absconding defendant before the publication of the summons; but unless the proper publication is thereafter made the attachment proceedings will be void. A delay of a year or more in making such publication is a sufficient ground for setting aside the attachment.</p>

The case is thus stated by Mr. Justice Oassoday: “ The complaint alleges in effect that during 1881 the defendant entered into a contract with one Hire for the erection by Hire of a brick block for the defendant in Baraboo; that in carrying out ánd completing that contract, Hire purchased from the plaintiff, who sold and delivered to him to be laid and used in said brick block, and which were actually laid and used therein, 140,000 bricks, at $5 per thousand, amounting to…

The action was commenced originally against the Wisconsin Central Eailroad Company and John A. Stewart and Edwin II. Abbot, trustees thereof, to recover damages for the death of the plaintiff’s intestate which resulted from injuries received by him while employed as a bridge repairer on said railroad. No service was had upon Mr. Stewart, and as to the company the action was discontinued at the trial.

After alleging that the defendant owned a large tract of land in certain counties of this state, of great value, which he was anxious to sell, and that the plaintiff was a woodsman of experience and acquainted with such lands, the complaint proceeds as follows: “ That on or about the 20th day of March, 1879, the said defendant desired this plaintiff to assist him in the sale of the aforementioned^lands, and then and there promised this plaintiff if said tract of land,…

The case is sufficiently stated in the opinion. The circuit court held that ch. 114, Laws of 1819, was invalid so far as it attempted to confer jurisdiction upon the county of Shaw-ano to assess taxes and attempts to create the county of New. From a judgment in favor of the plaintiff the defendants appealed.

After the decision of this court on a former appeal (56 TVis. 356), the place of trial was changed to Monroe county for the reason that Chas. M. Webb, one of the attorneys for the Whortons, had been appointed judge of the seventh judicial circuit. This appeal is by the Whortons from an order entered upon the accounting had in pursuance of the direction of this court upon said former appeal.

The case is thus stated by Mr. Justice Cassoday: “This is an action of ejectment brought by the original owner against one in'possession claiming under the grantee in a tax deed. The original answer contained a general denial, and an ineffectual attempt to plead several statutes of limitation, as held by this court. Smith v. Dragert, 60 Wis. 139.

<p> (1) Ejectment: New trial: Undertaking. (2) New trial after nonsuit. (3) Appealable order. </p> <p>1. The undertaking required by sec. 3092, R. S., upon the granting of a new trial in an action of ejectment, need not be executed by the applicant himself.</p> <p>2. Such new trial should be granted although there was a judgment of nonsuit entered after a trial by the court upon the merits.</p> <p>3. Where' the court has held that an undertaking is sufficient and has' granted a new trial thereon, an order adjudging that a second undertaking and deposit (made to supply supposed deficiencies in the former undertaking) were not in time, does not affect any substantial right, and is not appealable.</p>

This action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by a defect or insufficiency of a public highway in the defendant tpwn. The highway in question passes down a hill, and is excavated along the hillside so as to leave a bank on one side and a valley or ravine on the other.

The following statement of the case was prepared by Mr. Justice Taylob, as a part of the opinion: This action is brought by the appellant to recover for professional services in commencing and. prosecuting an action at law, in which the town of La Pointe, in the county of Ash-land, was plaintiff, and the present respondent was defendant.

■ This actioh was brought against the town of Ashland, the town of Butternut, to which a portion of the territory of the former town of La Pointe had been attached, and the county of Ashland. The facts sufficiently appear from the opinion.

Ejectment. The lands had been sold for taxes. The plaintiff, George R. Stuntz, was the original owner. The defendant, Simnner W. Tanner, claimed under the tax deed. Upon the trial the defendant introduced in evidence the judgment roll in an action brought by him under ch. 22, Laws of 1859, against the plaintiff herein, George R. Stuntz, and John II.

The case is thus stated by Mr. Justice Cassoday: “ This is an action of ejectment commenced February 9, 1880, by the alleged owner of the undivided one-half of the original title of the lots'and blocks described, against the defendant claiming under tax deeds. “The court found as facts, in effect, that the plaintiff had been such original owner; that the assessors had failed to take the prescribed oath in assessing the taxes upon which the tax deeds in question were issued;…

Action to recover the sum of $40 which was claimed to have been overpaid by the plaintiff to the defendant upon a contract for the transportation of tan-bark. The complaint alleged that such overpayment was made under a mistake of fact as to the quantity of the bark, arising from ignorance on the part of the plaintiff as to the manner of piling and measuring tan-bark for shipment. The answer was a' general denial.

The plaintiffs were creditors of the firm of Angus & Henderson. That firm, being insolvent, made a voluntary assignment for the benefit of its creditors to the defendant, Bowen. Held: substantially, that the undisputed evidence proved that the name of no creditor of the firm was fraudulently omitted from the list. The court submitted to the jury three questions, which, with the answers of the jury thereto, are as follows: “1. Was IT.

<p> Attachment: Debt fraudulently contracted: Evidence. </p> <p>Upon the evidence an attachment is sustained on the ground .that the defendants fraudulently contracted the debt, obtaining credit through a false statement by one of them as to the property owned by him. _ 1</p>

Action to recover the sum of $360, alleged to be due to the plaintiff for minutes of land furnished to the defendant under the following written contract, which was dated January ?, 1882, and was signed by the parties: “ I have this day agreed to give to Geo.

Action to recover upon an undertaking on appeal executed by one G. E. Nickey as principal, and by the defendants, A. S. Stiles and John Rumsey, as sureties. The cause was tried by the court, which found the facts as follows: A judgment in favor of the plaintiff and against G. E. Nickey and Charles C. Putnam, for the sum of $886.57, was rendered by the circuit court for Green county, October 5, 1876.

MaNdamus to the Commissioners of the Public Lands. The petition for the writ sets forth, among other things, that on January 21, 1884, the relator made application as required by law for the purchase at private sale of certain school lands therein described, situate in the county of Ash-land ; that said lands were subject to private sale; and that the application for the purchase thereof was refused by the commissioners.

<p> Towns: Vacation: “Division:" County board. </p> <p>The vaoatiou of a town and attachment of all its territory to several other organized towns, is not the division of a town within the meaning of sec. 671, R. 8., and may therefore be done by the county board without complying with the requirements of that section.</p>

<p>Oeiminal Law and Practice: Constitutional Law. (1-3) Sufficiency of evidence: New trial: Appeal: Murder. (4) Exceptions necessary on appeal. (B) Argument to jury: Explanations.- (G) Waiver of right to confront witnesses. (7) Redirect examination: What questions proper.</p> <p>1. If in a criminal case the evidence fairly tends to prove the guilt of the accused, the trial judge should not set aside a verdict of guilty merely because he may entertain doubts as to the sufficiency of the evidence.</p> <p>2. Where the trial judge has refused to set aside a verdict on the ground that the evidence was insufficient, this court will not interfere except in a clear case of the want of proof of any fact upon which the guilt of the accused can be fairly predicated.</p> <p>3. The evidence in this case is held to justify a finding that the deceased came to his death through blows inflicted by some person, and was not killed by trains upon a railroad track near which he was found, and to tend to show that such blows were inflicted by the defendant, who passed along such track about the time in question.</p> <p>4. In criminal as in civil cases unless objections are made and exceptions duly taken, neither the admission of improper evidence, nor improper comments upon evidence made by counsel to the jury, can be assigned as error on appeal.</p> <p>5. The prosecuting attorney having asked the accused a certain question, and the judge in excluding it having said that it was “entirely improper” and that the attorney “ought to understand it,” it was not improper for such attorney on the argument to state that he asked such question because he was advised by eminent counsel that it was proper.</p> <p>6. The accused may waive his constitutional right to meet the witnesses face to face.</p> <p>7. A question, improper upon the direct examination of a witness, may be proper upon his redirect examination if he has been cross-examined upon the subject.</p>

Ejectment. The complaint was in the usual form. Held: used, and occupied one room in said building for his office as such district attorney, the defendant at the time protesting against such use, possession, and occupancy, claiming that he was entitled to the possession of the premises because the county had broken the condition of the deed and forfeited its title, and stating that he…

The facts sufficiently appear from the opinion. There was a verdict for the defendant, and frqm the judgment entered thereon the plaintiff appealed.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant company. The plaintiff and one Roth were at work for the defendant, putting a cornice on its .depot building at Tunnel City, or Greenfield, on its line of railway between Milwaukee and La Crosse. A scaffold had been erected on the south side of the depot — towards the main track — upon which they stood when at work on the cornice.

The facts are stated in the opinion. In each case the circuit court sustained the validity of the assignment and rendered judgment accordingly in favor of the garnishee. The plaintiff appealed. It was stipulated that one appeal should bring up all the questions involved in both cases.

The relator obtained from the circuit court an order to show cause why a peremptory writ of mandamus should not issue to compel John Whittet, a justice of the peace in Jefferson county, to expunge from his docket certain entries made therein and to correct said docket by entering therein the true time when certain entries were made.

On August 15, 1881, the plaintiff’s intestate was run over and killed by a train of cars running on the railway of the defendant company, in the city of Watertown. The plaintiff has been duly appointed administrator of the estate of the deceased, “and brings this action under the statute to recover damages for such killing, alleging that the same was caused by the negligence of the defendant’s employees in charge of such train.

The case is thus stated by Mr. Justice Cassoday: “ This is au action to vacate and set aside the levy, sale, and certificate of sale of the lands in question, and to enjoin the-execution of a deed thereon, on the grounds that the lands were the plaintiff’s homestead and exempt from such, levy and sale.

APPEALS from the Circuit Court for 'Waukesha County. The facts (which are substantially the same in each case) are sufficiently stated in the opinion. The plaintiff in each case appealed from the order substituting the assignee as defendant; from the order allowing the special answer filed by the assignee to stand as his answer, and vacating the judgment; and from the order setting aside the execution.

The substance of the pleadings is thus stated by Mr. Justice Oassoday: “The original complaint alleged, in.effect, that the defendant was indebted to the plaintiff in a sum named on account and claim against the defendant and in favor of one Sweet, for services and commissions for the sale of premises described; that such services had been performed by Sweet on express contract with the defendant; and that the claim had been transferred by Sweet to the plaintiff before the…

<p>Foreclosure of mortgage: Costs of defendant disclaiming: Notice of taxation: Bes ad judicata.</p> <p>• In an action to foreclose a mortgage, a defendant who had been made a party as having some interest, answered disclaiming all interest and praying for costs. The answer was stricken out as frivolous. ■ Subsequently said defendant resisted the application for judgment and asked for his costs which were denied and, after the entry of judgment, the costs were taxed without notice to him. Thereupon he moved to set aside the taxation and for costs to be taxed in his favor. On an appeal from the order denying such motion, held, that it was res adjudicata that such defendant was not entitled to costs, and the failure to give him notice of the taxation, if error, was immaterial.</p>

Action for the wrongful taking and conversion of a stock of boots and shoes.

The case is stated in the opinion. to the point that the nonsuit should have been granted, cited: Wilcox v. B,., W. dé 0. R. It. Co. 39 N. Y. 358; Gorton v. Erie R’y Go. 45 id. 660; Levy v. G. W. R. R. Co. 48 id. 615; Salter v.TJ. da B\ R. R. R. Go. 15 id. 273; Reynolds v. K. 7. G. dé II. R. R. R. Go. 58 id. 248; Connelly v. K. 7. G. <& II. R. R. R. Oo. 88 id. 346; Gerety v. R., W. dé B. R. R. Go. 81 Pa.

The case is thus stated by Mr. Justice Tayloe: “This action was brought to recover the purchase price of two abutments to a bridge, which the plaintiff says he sold to the town, and for which the town agreed to pay him .the sum of $J50.

Action to recover two fifths of the expense of repairing a bridge situated on the line of a highway between the plaintiff and defendant towns. The facts will sufficiently appear from the opinion. At the close of the plaintiff’s testimony a motion for a nonsuit was granted, and from the judgment entered accordingly the plaintiff appealed.

The case is thus stated by Mr. Justice Cassoday: “ This is an action of ejectment, with a complaint in the form prescribed by statute. At first the defendants answered separately, in effect denying titLe in the plaintiffs; admitting possession in D. 8. Bishop; claiming it as rightful; alleging absolute ownership in fee in him; and denying and disclaiming title or possession in his wife. On the trial the defendants put in evidence and relied upon a tax deed.

The plaintiff recovered a judgment in justice’s court against the defendant, and a transcript thereof was duly-filed and docketed in the office of the clerk of the circuit court for Washington county. Upon affidavits, the substance of which will sufficiently appear from the opinion, the defendant moved that such transcript be stricken from the records of the circuit court. ' The motion was granted, and from the order entered in that behalf the plaintiff appealed.

The action was brought in the circuit court by the plaintiff against the defendant, Barbara Meyer, on a judgment for $80.83 theretofore recovered against her before a justice of the peace. On the day this action wTas commenced an affidavit and garnishee summons were served on her and on one Franckenlerg, the garnishee. A few days later, Messrs.

The facts sufficiently appear from the opinion. The defendant appealed from the judgment of the circuit court dismissing his appeal from the justice’s court.

APPEALS from the Circuit Court for Oconto County. Ejectment. The cause was before this court on a former appeal, and is reported in 58 Wis. 579. The plaintiffs now appeal from two several orders, dated respectively May 2G, and May 27,1884, denying applications for a new trial under sec. 8092, R. S. The facts sufficiently appear from the opinion.

The case is thus stated by Mr. Justice Cassoday: “ This action was commenced in a justice’s court against the defendant Marsh alone, for an assault and battery, claiming as damages $200 or under. Marsh interposed a general denial. On the trial in that court the plaintiff recovered a judgment fór $25 damages, and costs.

EEEOE to the Circuit Court for Columbia County. The plaintiff in error was charged with the murder of his wife, and at the first trial was found guilty of murder in the second degree. The judgment was reversed and a new trial ordered. See 57 Wis. 472, where the circumstances attending the death of the wife are stated. The venue Avas then changed to Columbia county. The evidence given on the second trial will sufficiently appear from the opinion.

The facts are sufficiently stated in the opinion. There was a verdict for the plaintiff, Alma J. Draper, assessing her damages at $1,200, and from the judgment entered thereon the defendant appealed. They argued, among other things, that evidence of defendant’s pecuniary circumstances being admissible, it was properly confined to general reputation. Kniffen v. McConnell, 30 FT. T. 285; Smith v. Sherwood, 2 Texas, 460; Rippey v. Miller, 11 Ired.

Action to recover damages for injuries to the horses, wagon, and goods of the plaintiff, alleged to have been caused by the negligent running of a locomotive on the defendant’s railroad. The facts sufficiently appear from the opinion. At the close of the plaintiff’s testimony a motion for a nonsuit was denied; and a request, made when both parties had rested, that the court direct a verdict for the defendant, was also denied.

The case is thus stated by Mr. Justice Cassoday: “ On or about February 2, 1880, in consideration pf $90 then paid, the defendant, at Darien, Wisconsin, agreed with the plaintiff in writing to transport one car-load of goods, consisting of household goods, farming implements, one pair of horses, and some lumber, described therein as the property of the plaintiff, from said Darien to Plum Creek, in the state of Nebraska.

This was a proceeding commenced, in the county court of Walworth county to obtain a construction and a determination of the validity of certain clauses in the will of Robert Lawson, deceased. The third and sixth clauses of such will are as follows: “ Third. I hereby give, devise, and bequeath unto my said executor all my real and personal estate in trust and for the uses and purposes hereinafter declared to be my will.” “ Sixth.

This is an appeal from an order of the circuit court sustaining a general demurrer to the complaint. The action isp ejectment.

The case is thus stated by Mr. Justice Cassoday: “JohnN. Pease died December 11, 1880.

The defendants appealed from an order overruling a demurrer to the complaint. The facts alleged are stated in the opinion.

The facts are sufficiently stated in the opinion. The defendants appealed from a judgment reversing and declaring void the sale of the school-house.

The action was commenced in justice’s court. The garnishee appeared specially and moved that the garnishee suit against him be dismissed for the reason that the papers were never properly served upon him and the service does not pretend to be completed until less than six days before the return day. The motion was granted, and from the judgment of dismissal the plaintiff appealed to the circuit court.

The case is thus stated by Mr. Justice Oassoday : “This action was commenced August 24, 1882.

The facts sufficiently appear from the opinion. There was a verdict for the plaintiffs for $750, and from the judgment entered thereon the defendants appealed.

The attorneys of the parties in this action have their offices in. the city of Milwaukee. On the last day allowed by law for serving answers to the complaint herein, the attorney for the defendants sent a messenger to the office of plaintiff’s attorneys to serve upon them copies of the answers of the defendants. Mr. Smith, one of the attorneys for the plaintiff, was in the office at the time.

The following statement of the pleadings was prepared; by Mr. Justice Tatlob as a part of the opinion: This action was brought to recover damages against the defendant Company upon two grounds.

The case is thus stated by Mr. Justice Cassoday: ■ “ The defendants, as partners, were dealers in ice, which they delivered to their customers in the city of Milwaukee. The plaintiff was a dealer in fruits, etc., and had a stand on the corner of Division and East Water streets, in Milwaukee. In the basement of the building on such corner was a fish-market, with access to it by stairs leading down oh the East Water street side of the building.

This action was brought by the plaintiff to recover damages for personal injuries alleged to have been received by her through the negligence of the defendant company, its agents and servants, while riding in one of its street-cars. The facts of the case are briefly as follows: The defendant operates two tracks of street railway, running north and south on East Water and Eeed streets, in the city of Milwaukee.

Action to foreclose a mechanic’s lien. The facts essential to an understanding of the decision of this court will sufficiently appear from the opinion.

The following statement of the case was prepared by Mr. Justice Tayloe, as a part of the opinion: This appeal arises out of a proceeding taken by tho city of Baoine to open a street in said city, and for the assessment of benefits and damages resulting from the opening thereof. The respondent owned a parcel of land, with a building situate thereon, fronting on Main street in said city, and being parts of lots 5 and 6, block 12, in the Pirst ward of Baoine.

Action upon a promissory note for $880.79, dated June 2, 1876, payable six months after date, executed and delivered by the defendant to one Christian Heclc and alleged to have been assigned to the plaintiff prior to the commencement of the action. It is further alleged that prior to the maturity of the note the defendant, left the state and was continually absent therefrom up to about the month of August, 1878.

Action to recover the sum of $450 and interest alleged to be due to the plaintiff upon an express oral agreement. The facts sufficiently appear from the opinion. There was a verdict for the plaintiff, and from the judgment entered thereon the defendant appealed.

The following statement of the facts alleged in the amended complaint was prepared by Mr. Justice Cassoday: April 9,1874, the plaintiff was the owner in fee and in possession of about twenty-nine acres of land, worth $30,000. She obtained her title to nineteen 52-100 acres of the same by a deed dated December 2, 1870, from George Burnham, and to nine 361-1000 acres of the same by a deed dated July-10, 1871, from Burnham, Eogers, and Becher.

The action was commenced in the circuit court for Milwaukee county. This appeal is by the defendants from a portion of an order changing the place of trial. The facts are stated'in the opinion.

<p> Striking matter from pleading: Immaterial error. </p> <p>Where, after matter is stricken from a pleading, all evidence admissible under the original pleading can still be introduced, the error, if any, in striking out such matter is immaterial, and the order will be affirmed.</p>

November' 19, 1883, one F. L. Fancher executed to the plaintiff a voluntary assignment of his property for the benefit of his creditors. Such assignment seems to have been executed in the manner prescribed by the statute in that behalf. Prior to that time, the defendant, the sheriff of Racine county, seized all of the property of Fancher, by virtue of three writs of attachment in his hands for service, and took all such property into his possession.

APPEAL' from the County Court of Milwaukee County. The facts are stated in the opinion. There was a verdict in favor of the defendant Brande, and from the judgment entered thereon the plaintiff appealed.

The substance of the complaint is stated in the opinion. The defendants The Oity of Milwaukee and Albert B. Geilfuss, city treasurer, demurred generally to the complaint, and from an order sustaining such demurrer the plaintiff appealed.

The case is thus stated by Mr. Justice Cassoday : “This is an appeal from an order overruling the demurrer, to the complaint, which stated, in effect, that the city of Milwaukee, one of the defendants in this action, is, and was at the several times hereinafter mentioned, a municipal corporation of the state of Wisconsin, formed and organized under the laws of said state,'and that Albert Geilfuss, the other defendant in this action, is treasurer of said city, and was such…

The case is thus stated by Mr. Justice Cassoday: “ The complaint alleges, in effect, the incorporation of the defendant under the laws of .this state, and as being possessed of all the privileges of railroad companies, and subject to all the liabilities and responsibilities of common carriers of passengers and freight; that October 13, 1882, the plaintiff, being a resident at Ableman, in Sauk county, Wisconsin, a station on defendant’s road, and there engaged in the business…

APPEALS from the County Court of Milwaukee County. During the year 1880 the city of Milwaukee, by due proceedings, condemned to the public use lot 5, block 165, in the Second ward of that city, for the extension of a public park. Damages were awarded to the owner of the lot for such taking,— $3,400 for the ground, and $2,850 for the building thereon,— in all, $6,250.

<p> Special appearance:'Waiver of defective service of summons. </p> <p>Upon an affidavit stating that he appeared specially for tho single purpose of objecting to the jurisdiction of the court the defendant’s attorney obtained an order that the plaintiff show cause why an order should not be made setting aside the service of the summons and dismissing the action for want of service, or restraining any further proceedings until the summons should be Served, “or such other or further order as the court shall deem meet to protect the rights of' said defendant.” The order to show cause recited that “ the defendant appears specially for the purpose of the motion and rule, and not generally, nor for any other purpose.” Held, that there was no general appearance or waiver of defects in the service of the summons.</p>

By stipulation of the parties the cause was referred to Hugh Ryan, Esq., to hear, try, and determine. The ref.eree found that at the commencement of the action there was due the defendant a balance of $32.90. The report of the referee was confirmed, and from the judgment entered accordingly the plaintiffs appealed. Other facts are stated in the opinion.

APPEALS from the Circuit Court for Milwaukee County. The case is thus stated by Mr. Justice Cassoday: “June 29, 1817, the defendant, Watkins, was the owner of •the lot in question, and the same was then occupied by Bradley as the tenant and lessee of Watkins. On that day the plaintiff obtained a tax deed thereon from the city of Milwaukee, which was recorded June 30, 1877.

The cause was before this court on a former appeal and is reported in 55 Wis. 427. The facts appearing upon the second trial are sufficiently stated in the opinion. The plaintiff appealed from a judgment in favor of the defendant.

APPEALS from the Circuit Court for Milwaultee County.' This action was brought to recover damages for an alleged libel. The case comes to this court on appeals from two orders of the circuit court overruling the separate general demurrers of the two defendants to' the complaint.

Action for the wrongful conversion of certain merchandise of the alleged value of $352. The plaintiff claimed title under a bill of sale to him from one E. W. Miller. The defendant, the sheriff of Milwaukee county, justified the taking under and Ipy virtue of an attachment against the property of Miller, claiming that the sale to the plaintiff was fraudulent and void as to the creditors of Miller.

The action is to enforce a lien upon three tubular boilers with attachments, and was originally brought against George A. and Leon Libbey and the city of Madison. Subsequently John G. Hoffman was made a defendant upon the allegation that he claimed some interest in the money to be paid by the city. The facts will sufficiently appear from the opinion.

Action to recover damages for injury to the plaintiff’s lands alleged to have been caused by the negligence of 'the defendant in permitting á culvert to become filled up, causing water to dam up and flow back upon said lands. The facts sufficiently appear from the opinion.

The case is stated in the opinion. The written lease in. question was dated October 4, 1879 (Saturday), and by its terms possession of the premises was to be given on October 6 (Monday). But it seems to have been admitted on. the trial that the lease was in fact executed and possessiori delivered on Sunday. Prom the judgment in the circuit court in favor of the plaintiff the defendant appealed.

The case is stated in the opinion. There was a verdict for the plaintiff, and from the judgment entered thereon the defendant appealed.

<p>APPEAL from the Circuit Court for Winnebago County,</p> <p>The facts will sufficiently appear from the opinion. The plaintiff appealed from a judgment for the defendant.</p>

The case is thus stated by Mr. Justice Cassoday: “The defendants are husband and wife. The action is npon a promissory note, dated August 21, 1879, payable to the plaintiff or order, at the bank, for $800, with interest at seven per cent., and to which the husband signed the name of his wife, his own name as agent, and also his own name.

The plaintiff appealed from an order sustaining a demurrer to the complaint, interposed by the defendant Mary E. Fagan (otherwise known as Mary E. Paige). The facts sufficiently appear from the opinion.