Filer & Stowell Co. v. Sohns

23 N.W. 135, 63 Wis. 118

• Court: Wisconsin Supreme Court
• Decided: April 28, 1885
• Status: Published

Opinion

Lyon, J.

The only objections made to the sufficiency of the affidavit of appeal are (1) that it is not entitled in the action; and (2) that it does not state, as required by sec. 3*154:, R. S., that “ the appeal is made in good faith,” but only “ that this appeal is in good faith,”— the word “ made ” being omitted therefrom. The affidavit, although not entitled in the action, unmistakably refers to the notice of appeal which is so entitled. Such is the necessary signification of the words therein, “ that he is the defendant above named.” This brings the case within the rule of Kearney v. Andrews, 5 Wis. 23, and cures the omission of an entitling.

It is difficult to treat the second objection seriously, although the learned counsel argued it with much earnestness and apparent sincerity. The omission of the word “ made” does not change the affidavit or obscure its meaning in the slightest degree, and no one has any right to be misled by it. When the affiant deposed that “ this appeal is in good faith,” he deposed in substance and effect that “ this appeal is made in good faith.” The difference between this case and the case of Evangelical L. St. P. Gemeinde v. Koehler, 59 Wis. 650, relied upon to sustain the dismissal of the appeal, is, in that case, the notice of appeal was defective in substance, while here the alleged defects are purely formal, and immaterial.

By the Court. — • The order of the county court dismissing the appeal from the judgment of the justice is reversed, and the cause will be remanded for further proceedings according to law.