Volume 7 — Wisconsin Reports

APPEAL PROM THE MILWAUKEE CIRCÜIT COURT. This was an action brought by the plaintiffs, Appellants, against the defendants, Respondents, as common carriers.

This was an action of ejectment commenced in the usual form, before the code, for the recovery of lot 6, in block 43, and lilts 7, 8, and 9, in block 53, in the village of Madison. The defence was, the general issue and title in the defendant, by virtue of tax deeds, and the statute of limitations.

This was an action brought by the appellant against the respondent to enforce a mechanic’s lien. The whole question determined, arises upon the charge of the court below, which is stated in the opinion.

On the trial of this case, Richmond W. Howland, one of the defendants, was called and sworn as a witness on the part of the defendants. During the examination of the witness by the deiendants’ counsel, the counsel for the plaintiff interrupted the examination by propounding to the witness a question relative to the subject matter of inquiry, but not relating to his interest, or in any manner pertaining to cross-examination.

The subject matter of this suit has once before been before this court upon a different state of pleadings, and is reported in 5th Wisconsin 173.

The action was by summons and complaint in the usual form. The following is the return of the Sheriff of the service : “ On the 6th day of March, 1857, 1 served the within summons and complaint on the within named defendant, JohnM.

This was a complaint filed for the purpose of perpetually enjoining and restraining the Milwaukee & Beloit Railroad Company, from laying and constructing their track along certain streets and across the public square, in the fifth ward of the City of Milwaukee.

At a former term of this court, this cause came on for hearing upon an appeal from a final decree of the circuit court of Milwaukee county. The decree of the circuit court was reversed, judgment rendered accordingly, the opinion of the court placed on file, and the cause remitted to the circuit court. Now at this, the succeeding term, two motions are made in the cause, both of which are stated in the opinion.

<p>A copy of the bond or undertaking for appeal mast be served upon the attorney of the opposite party ; a failure in this respect is good cause for dismissing the appeal.</p>

This action was commenced in the Racine Circuit Court. The complaint was in the usual form for work and labor and materials furnished, demanding judgment for the sum of $215 75, and was served with the summons on the 27th day of June, 1857.

This was an action of ejectment brought in the Dane circuit by defendant in error, against the plaintiff in error, to recover lot 3 in block 110 in the city of Madison. The facts cannot be more succinctly stated than in the following case,’ settled by the court below. This was an action of ejectment, commenced by the plaintiff (the defendant in error) September 25th, 1856, to recover lot three in block one hundred and ten in the city of Madison.

This was an action for injury to real estate brought by Babb, the plaintiff in error, against Carver, the defendant in error, for cutting down trees, &c., upon the premises of the plaintiff to his damages one hundred dollars.

This was an action brought by the respondents against the appellants for taking and carrying away certain personal property from the possession of the respondents. The defendants answered separately.

This was an action brought by the plaintiff, as 'first endorser of a promissory note against the maker. The action was commenced by attachment before a justice of the peace, where the plaintiff obtained judgment for $58.81 damages and $11.62 costs, from which the defendant appealed. The following is a portion of the return of the justice: “Plaintiff appeared by A. J. Brandage, his Attorney, and M. Kelley, Jr., for defendant.

The whole case is set out in the following affidavit, together with the order of the court made thereon. “ Delos Brett, being first duly sworn, deposeth and says that he resides in the city of Janesville, in the county of Rock and State of Wisconsin, and is one of the defendants in the above entitled action.

This was an appeal from an order of the circuit court refusing a new trial. * The action was commenced before a justice ol the peace, upon a promissory note for one hundred dollars, on which there was an endorsement of ten dollars, dated April 16, 1856, payable to W. H. Allison one day after date.

The ease not showing what evidence was used upon the trial, or that any exceptions were taken, the presumption is, that the court rendered judgment upon sufficient testimony. The party bringing up a cause, either upon appeal or writ of error, must show error in the proceedings in the court helow. And this applies under the code as well to what were chancery proceedings under the old system, as to what were known as common law actions.

This was an action on a money demand by the plaintiffs, as the owners of a promissory note. The plaintiffs claimed against the defendants as the purchasers of a note given and executed by the said defendants to one Franklin J. Burt, bearing date March 19, A. D. 1858, for one'hundred dollars, due on the first of June, A. D. 1858, which note was payable to the said Burt or bearer, and drew seven per cent, interest before due, and twelve per cent, after due.

Action, on a bond made by Boyd principal and, Barstow and Hunter as sureties, commenced by the respondent against the plaintiffs. The cause being at issue at the June term, A. D. 1858, the defendants, upon affidavit of the defendant Boyd, moved for a continuance of the said cause, which was overruled.

Action of trover for the conversion of a certain crop of grain. The property ivas claimed under a chattel mortgage executed by one Hatch, lessee of one of the defendants below, to the plaintiff, upon the oats, wheat and corn (the property in dispute), at or about the time the same were planted, and before the same was up or presented the appearance of growing grain.

.APPEAL PROM MILWAUKEE COUNTY COURT. This was an action commenced in the county court of Milwaukee county, by the respondent, Mitchell, against Worden, the appellant, and David G. Power, the former as endorser, and the latter as maker of two several promissory notes, one for #266.67 eighteen months after date with interest at eight per cent, per annum, dated 20th day of March, 1855 ; and the other payable twenty-five months after the same date, for the same amount, with like…

<p>A motion to dismiss an appeal from a Justice of the Peace is a final determination of the cause in the circuit court, and an appeal lies therefrom.</p> <p>Motions made in the progress of a cause are no part of the record proper, and mast he made such in order to he noticed on error or appeal.</p>

The main ground of defence in the court below was, that the plaintiffs below, themselves set fire to the property insured. To establish this defence, a great mass of evidence was produced on the trial, but the principal error relied upon to reverse the judgment (which was for the plaintiffs below), is assigned upon the following instruction of the judge to the jury.

There were three actions for libel commenced in. the Dane, circuit by the respondent, against the appellants. They ail depend substantially upon the same state of facts; and involve the same questions of law and practice. They were all argued at one time, and were all considered together by the court. These questions arise upon the pleadings in the case, for the purpose of presenting which, it will be sufficient to state one case only.

The action was commenced by filing a declaration, which contained the common money counts, and a special count, as follows: “Edwin Townsend, John G-.

<p>If, on appeal from tlie judgment of a justice of the peace, judgment he rendered against the appellant alone, and execution shall not be issued within ( thirty days after the rendition of the judgment, the sureties in the recognizance are discharged. (Sec. 247, R. S., 1849.</p>

APPEAL PROM BROWN CIRCÜIT COURT. The pleadings and proofs in this case, on the hearing of which the plaintiff’s bill was dismissed, are substantially as follows: “On the 10th day of June, A. D. 1856, the defendants, Dominique and Augustin Brunette, executed and delivered to the appellant a deed of a certain parcel of land, containing about thirty acres, situate in said county of Brown, and being a portion of private claim numbered ten on the west side of Fox river. “ That…

ARREAL RROM MARQUETTE CIRCUIT COURT, The facts in this case, so far as they are disclosed by the record, appear in the opinion oí the court, as well as the points made on the argument.

This was an action for the foreclosure of a mortgage, commenced by the respondent against the appellant. After the issue was made up, the cause was removed to the Winnebago circuit.

This was an action of tort commenced by the plaintiff, Richards, against the defendants, before a justice of the peace, and taken by appeal to the circuit court, where a trial was had before a jury who returned the following verdict: “ The jury in this cause say they find the defendant guilty, and assess the plaintiff’s damages at twenty-eight dollars.” Upon this verdict the defendants moved in arrest of judg.ment, and for a new trial.

This was an action of replevin commenced in a justice’s court, since the adoption of the code. The justice held that he had no jurisdiction of the cause of action and nonsuited the plaintiff, who appealed to the circuit court, where the judgment of the justice was reversed, and the plaintiff had judgment, and the defendant appealed.

APPEAL PROM MILWAUKEE CIRCUIT COURT, This suit was brought in the circuit court for the county of Milwaukee, for the foreclosure of a mortgage, and judgment of foreclosure was regularly made on the 9th day of November, 1857.

This action was brought against the defendants, for killing by their servants, the plaintiff’s horse, of the value of $300, at the town of Hartford, in said county. The cause was brought on to trial in October, 1857, before a jury.

<p>ERROR TO DANE CIRCUIT COURT.</p> <p>The only questions determined in this case are distinctly stated in the opinion of the courts.</p>

This was an action for assault and battery, alleged to have been committed by the defendant upon Barbara, the wife oí Peter J. Martin. The cause was tried at the October term, 1858, of the Racine circuit, and a verdict rendered for the plaintiff. The defendant afterwards, on a case made and affidavits moved for a new trial, on the merits, and also for surprise, and newly discovered evidence.

Action for the foreclosure of a mortgage. The facts are sufficiently stated in the opinion of the court. made the following points: 1. The appellant contends that the executor or administrator and heirs of Allison Lewis, deceased, are not only necessary but indispensable parties.

This was an action brought in the county court of Milwaukee county, by the respondents against the appellants, to recover the amount of a certain consignment of wheat, forwarded by the respondents to the appellants, to be sold by the latter. The cause was tried by the-court and judgment rendered for the respondents, from which judgment this appeal is taken.

This was a bill filed by the appellant, Hodson, to redeem certain premises, or real estate, which had been sold under a decree of foreclosure.

The complaint in this case is stated in substance as follows : That the said defendant, an organized town of the said county of… Held: as required by said act, in the said town, on the 20th day of May, A. D. 1854; that said election was held, conducted, and the votes cast thereat canvassed, in all respects as required by said act; and that at such election, a majority of the votes in said town, upon said question, was in favor of said subscription and of the issuing…

On the 14th day of December, A. D. 1857, the above named Jesse W. Helden filed in the circuit court of Dane county the following petition : That on or about the 24th day of January, A. D. 1857, your petitioner exhibited his bill in this court, against the above named defendant, who was then the wife of your petitioner, and was then, and is now, residing in the county of Dane aforesaid; and thereby, after alleging among other things, the marriage of your petitioner with the…

Filer, the defendant in error, brought suit against the Adamses plaintiffs in error upon a contract of sale of a certain quantity of tobacco, valued at some #3000 or more. The declaration set out the contract of sale, by which Filer sold and delivered to the Adamses the tobacco, for which the latter agreed to give their promissory notes for the amount. The defendant pleaded the general issue with notice of special matter.

This was an. action brought by the respondents against the appellant for the recovery of two horses, of the value of five hundred dollars.

This was an action commenced upon a promissory note, (hereinafter set forth,) by the respondent, by the name of Lodema Jones. After the commencement of the suit she intermarried with one Groat, and on application to the court, it appearing that the note was her separate property, she was allowed to prosecute her action by the name of Lodema Groat.

This is another case involving the practice in cases of alleged frivolous answers. The answer was on motion decided to be frivolous, and that the plaintiff was entitled to judgment. Thereupon the plaintiff’s counsel proceeded to final judgment under section 159 of the code. As these questions have been considered in former cases, it is only here necessary to give the opinion of the court, which sets out the facts in the case sufficiently in detail.

The respondent commenced a suit for the recovery of damages for the breach of a contract of hiring, by the service of a summons, issued out of the circuit court for Brown county, on the 28th day of March, 1857. The complaint was served upon the appellant’s attorney on the 13th of April ensuing.

This was an action brought by the plaintiff against the defendant, to recover the amount of his subscription to the capital stock of said company.

This was an action for the foreclosure of a certain mortgage given by the respondents, McVickar and Bagnall to the plaintiff, Flanders, to secure the sum of $13,500, in installments, according to the… Held: and these defendants charge and insist that by reason of such tax deeds and conveyances, the said Flanders was not seized of a good, sure, absolute and indefeasible estate of inheritance in law in fee simple in said premises.

appeal PROM Milwaukee circuit court. This was an action brought by the respondent against the defendant for the foreclosure of a mortgage.

This is another appeal in the same case as the foregoing. On the 19th of April, the court made the order, from which the former appeal was taken, adjudging the demurrer frivolous, and giving the defendant ten days to answer. On the same day, the court, on application of the defendant, fixed the amount of undertaking for an appeal in the sum of $350.

These two cases are substantially alike, and were argued and considered together. An action of ejectment was brought in the Dane circuit court by the plaintiff in error, against the defendant in error. The cause was tried by a jury at the November term, 1856.

This was an action brought by the respondents as husband and wife, against the defendants, upon a promissory note made by the defendants to Leonora L. Foote, or order.

This was action commenced by respondent against the appellant before H. Tattle, Esq., a justice of the peace in and for Kenosha county, on the 17th day of January, A. D. 1857, on a promissory note, or due bill, of which the following is a copy, to wit: $16 88. Kenosha, January 29, 1851. Due A. P. Tymeson or bearer, sixteen dollars and eighty-eight cents, at twelve per cent, for value received. Signed, E. W. Evans.

This was an action commenced before a justice of the peace to recover for three and a half months’ wages for work and labor at the rate of $14.00 per month. The plaintiff recovered $49.00 damages and costs, and the defendant appealed to the circuit court. On the trial in the circuit court the plaintiff proved the service rendered and the agreement between the parties substantially as set forth in the opinion of the court.

This was a complaint as in equity filed'in the Dane Circuit Court subsequent to the adoption of the code, and prosecuted to a final decree or judgment. The plaintiffs’ counsel brought a writ of error, insisting that inasmuch as the code had abolished all distinction between suits at law and in equity, and as the constitution provided that writs of error should never be prohibited by law, he was entitled to his writ of error in all cases.

This was an action upon the common counts, plea general issue, and also a special plea, setting out as a defence to the action the defendant’s discharge in insolvency, made in pursuance as was alleged of chapter 128 of the revised statutes. The plea set forth all the proceedings in due and regular form, hut they were commenced before, a court commissioner, and proceeded in to a final discharge, which was granted by said commissioner.

The complaint filed by the respondents states that on or about the 5th day of February 1856, the above named defendant made and executed a written agreement, bearing date on that day, and delivered it to the plaintiffs, which agreement was in substance and effect as follows, that he, the defendant, would sell to Cheney and Williams from 80 to 400 acres of land on the west and east side of Rock river, five miles north of the village of Jefferson, in Jefferson County, for…

This was an action commenced in the circuit court of Milwaukee county, to recover for personal injuries alleged by the plaintiff to have been received while in the cars of the defendant, by and through the carelessness and negligence of the servants and employees of the said defendants.

The cause of action is set out in the complaint as follows : The complaint of the above named plaintiff respectfully shows unto this court that the defendants, Robert L. Bell and August Baensch, doing business under the style of Bell & Baensch, on the 6th day of August, A. D. 1855, at Manito-woc, in the State of Wisconsin, made their certain draft in writing, (bearing date on that day,) on Messrs.

This was an action of trespass quase clausum fregit, commenced before a justice of the peace of Dodge county. The declaration was in the usual form. Plea, general issue, with notice of liberum tenementum, and notice bringing the title of the land in question, whereupon the case was removed to the circuit court of said county, and was tried at the April term, 1856.

All the material facts in this case are mentioned in the opinion of the court. The judgment in this case was erroneous, because— 1. The complaint shows that the principal sum secured by the mortgage, was not due. It could not become due until the time limited in the mortgage, or until there had been a failure on the part of the mortgagors to keep their covenants. and the mortgagee had exercised his “ option,” to declare it due, for that cause. 2.

This was an action brought to foreclose a mortgage, executed by Sidney K. Sykes and Martha Sykes, two of the defendants, to secure the] payment of $276 96. Process was served upon all the defendants. No appearance was made by any of the defendants, except Alexander W. Shepard.

This was an action for libel. The declaration was in the usual form and set out the defamatory or libellous matter as published in the “ Daily Argus and Democrat,” as follows : “Did compose and publish, and cause and procure to be published, of and concerning the said plaintiff, a certain false, scandalous, malicious and defamatory libel, containing amongst other things, the false, scandalous, malicious and defamatory matter, of and concerning the said plaintiff, that is to…

This was an action for the claim and delivery of personal property, brought by the respondent in the circuit court of Dane county, to recover possession of certain goods and chattels alleged to have been wrongfully taken and detained by the defendants, and for damages for such taking and detention.

APPEAL PROM CRAWFORD CIRCürT COURT. This was an action commenced before the code, by the service of a declaration and notice of rule to plead. The declaration contained a special count on the acceptance of a bill of exchange, and also the money counts, with a copy °of said bill, which was as follows: “ $277, 27-100. New Yore, December 7, 1855.

This was an action brought by the respondent against the appellant for obstructing certain streets in said city. The complaint set out six separate causes of action, which was demurred to by the defendant, the demurrer overruled, and the defendant appealed.

Action upon a promissory note, brought by the appellant against the respondents. The defendants demurred to the complaint, and the demurrer was sustained, and the plaintiff appealed.

Appeal fp.om hock cijkcutt court. This is an appeal from an order of the circuit court granting a new trial. The action was trover, commenced before the code, but tried after its adoption. The declaration was in the usual form, and the plea the general issue. The evidence on the trial was quite voluminous, and somewhat conflicting.

Action -for foreclosure of a mortgage brought by the respondent against the appellant and others. The complaint, among other things, alleged that the defendant, Bowron, on the 2d day of October, 1852, executed and delivered to Jas.

This was an action for the claim and delivery of personal property brought by the plaintiffs against the defendants.

This was doubtless a mistake in prosecuting a writ of error instead of an appeal from an order of the court below denying a motion for a new trial. The case is explained in the opinion of the court.

This was a complaint under the code of practice, showing that the defendant Baehr, agreed to erect a brick building for the plaintiff, according to certain plans and specifications furnished by John Dillenburg, the architect, for the sum of $4,350; and to complete the same on the 1st of April, 18575 and in case of default to complete, at the time, the sum of $500 was to be deducted as liquidated damages.

appeal PROM marquette circuit court. This is an action of assumpsit brought by the appellee against the appellants, as joint makers of a promissory note, which read as follows: $400. Ripon, Wis., Nov. 4th, 1856. Thirty days after date, for value received, I promise to pay Putnam C. Dart or order, four hundred dollars, with interest, at the rate of twelve per cent per annum. J. C. Sherwood, Wm. C. Sherwood, Surety.

This action was commenced before a justice of the peace, to recover damages done by the defendant Stone, who was the servant of the other defendants, in carelessly driving a baggage wagon against the wagon of Dressier in which he and his wife were sitting, so that the wagon and harness were broken, and his wife thrown out of the wagon and seriously injured, &c. The appellants did not appear, and the appellee obtained judgment, and they appealed to the county court.

These two cases between the same parties were tried at the same term of the circuit court, and argued together in this court In the first… Held: as part of the consideration for the store, &c., and then also agreed with the defendant to endorse on this note the amounts which had then been discovered, and also such sums as should be discovered, to be erroneous ; that the amounts then discovered amounted to $200; that a large amount of goods sold by the payee of the value of…

appeal PROM Milwaukee circuit court. This was a bill filed (before the code) to set aside and perpetually enjoin a judgment rendered in the Winnebago circuit court at the September Term, 1856, in favor of the said Baker against the said Huebsehman.

The complaint in this case set forth that Smith and Power purchased two hundred and seven school land certificates, amounting to about 8,207 acres of land, situated in Columbia, Dodge, Fond du Lac, Outagamie, Brown, La Crosse, Adams and Crawford counties. The certificates were of the value of $15,000 or $20,000. The certificates were assigned in blank, and duly acknowledged, with verbal authority to fill in the names of the purchasers.

Appeal ekom rock circuit court. This was an action to foreclose a mortgage.

Action to compel the specific performance of a contract for the conveyance of real estate. The complaint was in substance, after alleging the legal corporate existence of Lawrence University, “ shows that the defendant Amos A. Lawrence, who resides in the city of Boston, in the State of Massachusetts, is seized in fee simple, but in trust for the said Lawrence University of Wisconsin, of the said premises hereinafter described.

This case is stated somewhat in detail in the opinion of the court, but perhaps not sufficiently to give a full idea of the case.

This was an action commenced hy the respondent, against the appellant in the circuit court of Dane county, to vacate and enjoin a certain judgment rendered by a justice of the peace of Columbia county, in favor of the said Eaton against the said Wright.

This was an action brought by the respondent as indorsee of a promissory note against the appellants as the makers thereof.

This was an action brought by the plaintiff in error against the defendant in error to recover the possession of eight certain “ school land certificates.” The plaintiff alleges that on or about the 19th day of September, 1857, the said certificates were left by him with one Reuel Noyes, a real estate dealer and agent, then in the city of Madison, for the purpose of selling the same on commission on behalf of and for the benefit of the plaintiff, and for no other purpose;…

The facts in this case are stated in the opinion of the court. 1. The value of the oxen, for the recovery of which the action in the circuit court was brought, is an essential fact, and should have been found by the jury on the trial. The amendment to the verdict by the court, therefore, is unauthorized. Code, § 171, et § 215. sub. 4. 2.

This case came before the whole court at the January term, A. D. 1858. The material facts are all stated in the opinion, by Mr. Justice Cole. The other Justices delivered oral opinions on the occasion of pronouncing the judgment, concurring therein, but they have not been written out or furnished to the reporter.

This was a writ of certiorari issued to Mr. Justice Cole to bring up the proceeding had before him in the above entitled case in vacation. The return and all the material facts are stated in the opinion of the court.

<p>ERROR TO LA CROSSE. CIRCUIT COURT.</p> <p>The facts in this case are fully stated in the opinion of the court.</p>

This case came up from Rock county on the report of the circuit judge, for the advice and opinion of this court upon certain questions of law which arose on the trial. The defendant was indicted for adultery with Adaline Winders, the wife of John W. Winders. The report of the judge is as follows : To the Hon. Supreme Court of the State qf Wisconsin : “ That upon said trial John W. Winders was produced and sworn as a witness on behalf of the State.

The defendant was prosecuted before a justice of the peace of Richland county for selling intoxicating liquors without license. The defendant was convicted, and appealed to the circuit court, where he was also convicted.

This was a proceeding under the bastardy act, wherein the plaintiff in error was charged as the father of an illegitimate child. The several points decided and the facts in relation thereto, are stated in the opinion of the court.

This case came up from Dane Circuit, on the report of the judge of questions of law arising on the trial, for the advice and opinion of this court. The indictment is substantially set out in the opinion of the court.

<p>The act incorporating the city of Madison gives the common council the control of the finances and property of the city; the making of ordinances concerning health; providing for hospital and cemetery grounds, and regulating the burial of the dead. By these provisions full power was given to the council to adopt all necessary sanitary regulations, and to make all suitable provisions for the burial of the dead.</p> <p>The city of M. was authorized to purchase burial grounds, and if the common council had no money, they could isuse the bonds of the city to pay for the grounds.</p> <p>City bonds may be constitutionally issued, for the purchase of cemetery grounds, if there be no restriction on the common council in the charter’ itself.</p> <p>Section 6, Article 8, of the State constitution restricting the amount of State indebtedness, has no application to municipal corporations.</p> <p>Where the common council had passed a valid ordinance for the issuing of city bonds, the filling up and dating the bonds is a ministerial act, and a mistake in the date does not render them invalid.</p>

An alternative writ was issued to which the respondent made return, the material facts of which are set forth in the opinion of the court To this return the relator demurred.

The prisoner having been convicted of manslaughter in the first degree in the circuit court of Iowa county, brought a writ of error to this court, upon which the judgment of the court below was reversed and a new trial ordered. Thereupon the prisoner applied for this writ, claiming to be discharged on the ground that he could not be again put in jeopardy. The facts of the case are all stated in the opinion of the court

The respondent was summoned to appear and show by what warrant or authority he held the office of police justice of the city of Watertown.