Comdohr v. Coleman

25 N.W. 422, 64 Wis. 413, 1885 Wisc. LEXIS 61

• Court: Wisconsin Supreme Court
• Decided: November 3, 1885
• Status: Published

Opinion

Cassoday, J.

Neither party brought the appeal to a hearing in the appellate court before the end of the second tei-m after the filing of the return of the justice therein, as required by the statute. Secs. 2847, 3766, R. S. Merely noticing the cause for trial at the first term after the filing of the return was not the bringing of the appeal to a hearing within the meaning of that section. Holt v. Coleman, 61 Wis. 422. Nor was the continuing of the cause at that term by consent of tho parties the bringing of the appeal to a hearing within the meaning of that section. Ibid.; Platto v. W. U. Tel. Co. ante, p. 341, in which an opinion is filed herewith. The appeal was not continued by special order for cause shown during the second term, nor even during the third term. Ibid. Nor was the neglect to notice the cause for trial at the second term excused by any proper showing within the rulings of this court. Howe v. Elliott, 24 Wis. 677; Pinger v. Vanclick, 36 Wis. 141. The mere fact that the respondent in the appeal from the justice expressed an anxiety to settle the cause, and talked to the defendant about such settlement, was no excuse for the appellant’s failure to notice the cause for trial. Except in the cases mentioned, the statute is peremptory, and requires that “ such court shall dismiss the appeal.” While such is the statute, we have no alternative but to give it effect.

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