Carpenter v. Shepardson

46 Wis. 557

• Court: Wisconsin Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Ryait, O. J.

When this case was here before, 43 Wis., 406, this court affirmed the order of the court below, sending the case to a referee for trial. Pending the reference, the referee died.

An affidavit of the death of the referee was then presented to the court below, and an order made that the appellant show cause why the case should not be referred to some suitable person.

Properly the motion should have been to appoint another referee. But that was the effect of the order to show cause, because it had already been determined that the case was a proper one for reference, and the reference had been ordered. And this was obviously the view of the court below, as shown by the order from which this appeal is taken, appointing another person referee under the former order of reference, in place of the referee deceased.

But whatever form the motion might take, the question whether the cause should be referred could not arise upon it. That was res adjudicata, unaffected by the accident of the referee’s death.

The appellant, however, appears to have thought differently, and came in upon the order to show cause with a stipulation, undoubtedly tending to abbreviate the account. If this stipulation could have had any effect on the question, it still left an account for reference. Amongst several items which the stipulation does not admit, is one of $2,564.20, for bill rendered apparently for professional services, etc., in Shepardson v. Yates; presumably, perhaps, the same case which has been several times before this court. 27 Wis., 238; 37 Wis., 315; 39 Wis., 178. This aggregate item probably involves a long account in itself.

In either aspect, the order of the court below was properly made.

By the Court. — The order of the court below is affirmed.