Benedix v. German Insurance Co.

Wisconsin Supreme Court

Benedix v. German Insurance Co.

49 N.W. 811, 80 Wis. 148, 1891 Wisc. LEXIS 184

DecidedSeptember 29, 1891

StatusPublished

This text of 49 N.W. 811 (Benedix v. German Insurance Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benedix v. German Insurance Co., 49 N.W. 811, 80 Wis. 148, 1891 Wisc. LEXIS 184 (Wis. 1891).

Pincite

Opinion

WiNSLow, J.

Counsel asks this court to open the default which has occurred, or make an order compelling plaintiffs to stipulate to his proposed bill of exceptions. Waiving the question of the right of this court to make such an order, we are persuaded that it ought not to be made in any event. Counsel allowed the time to elapse without applying for extension either to the counsel or to the court, relying upon his understanding of what seems to have been a casual interview. While we might, under ordinary circumstances, feel inclined to relieve from a default so occurring, the circumstances in this case are not ordinary. There is no person or officer now living who can settle the bill-Opening the default would seem to be a work of supererogation when nothing can be done after it is opened. But counsel urges that the record should be remitted to the circuit court, and that appellant will then be entitled to a new trial, providing plaintiffs’ counsel do not agree to the bill as proposed, under the terms of sec. 2877, E. S. Not so, however: the section relied on only provides for a case where the trial judge dies or removes from the state “after judgment, and before expiration' of the period limited for serving a bill of exceptions.” Such was not the case here. Judge Myees died August 2d, more than two months after the time limited for serving a bill of exceptions; hence it [150]*150would be useless to remit the case. The net result of any one of the various forms of relief which appellant prays for would seem to be to compel the plaintiffs to accept and stipulate to defendant’s proposed bill or submit to a new trial. We do not feel that we can make any such order.

The motion must be denied, with $10 costs, except as to that part which prays for the substitution of an administrator in place of a deceased plaintiff, which will, of course, be granted.

By the Court.— It is so ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

WiNSLow, J.

Counsel asks this court to open the default which has occurred, or make an order compelling plaintiffs to stipulate to his proposed bill of exceptions. Waiving the question of the right of this court to make such an order, we are persuaded that it ought not to be made in any event. Counsel allowed the time to elapse without applying for extension either to the counsel or to the court, relying upon his understanding of what seems to have been a casual interview. While we might, under ordinary circumstances, feel inclined to relieve from a default so occurring, the circumstances in this case are not ordinary. There is no person or officer now living who can settle the bill-Opening the default would seem to be a work of supererogation when nothing can be done after it is opened. But counsel urges that the record should be remitted to the circuit court, and that appellant will then be entitled to a new trial, providing plaintiffs’ counsel do not agree to the bill as proposed, under the terms of sec. 2877, E. S. Not so, however: the section relied on only provides for a case where the trial judge dies or removes from the state “after judgment, and before expiration' of the period limited for serving a bill of exceptions.” Such was not the case here. Judge Myees died August 2d, more than two months after the time limited for serving a bill of exceptions; hence it [150]*150would be useless to remit the case. The net result of any one of the various forms of relief which appellant prays for would seem to be to compel the plaintiffs to accept and stipulate to defendant’s proposed bill or submit to a new trial. We do not feel that we can make any such order.

The motion must be denied, with $10 costs, except as to that part which prays for the substitution of an administrator in place of a deceased plaintiff, which will, of course, be granted.

By the Court.— It is so ordered.

Cite This Page — Counsel Stack

Bluebook (online)

49 N.W. 811, 80 Wis. 148, 1891 Wisc. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benedix-v-german-insurance-co-wis-1891.