Hanson v. Chicago & Lake Superior Railway Co.

167 N.W. 450, 167 Wis. 335, 1918 Wisc. LEXIS 99

• Court: Wisconsin Supreme Court
• Decided: April 30, 1918
• Status: Published

Opinion

ViNJE, J.

Tbe petitioner urges tbat since tbe receiver wrote and suggested tbat it remove tbe car it bad a right to do so without acquiescing in tbe order made, and tbat its talcing tbe car could not affect its right to appeal from tbe order made. Tbe letter of tbe receiver was no doubt prompted, as stated by him, by tbe fact tbat be thought tbe order made was acceptable to tbe petitioner, and tbat to save it expense be wrote advising it of tbe pending removal of tbe track. But if not so, the petitioner knew tbat tbe receiver bad no right to modify or violate tbe order of tbe court, and tbat it could acquire no right from tbe receiver contrary to tbe court’s order.

Claim is also made tbat tbe car was taken by the petitioner to protect it from injury and to save'expense. But there is nothing to show that the receiver would not have adequately cared for it, and certainly no good reason is presented why it should, without leave of the court, have been taken outside of its jurisdiction for protection only. The petitioner must have taken the car either under or in spite of the order. We cannot assume that it intentionally violated the court’s order, hence it must be .deemed to have taken the car in pursuance thereof. Having so taken it, no appeal by petitioner lies from the order even though it did not, as it says, intend to relinquish its right of appeal. For a party who intentionally accepts the fruits of an order cannot maintain an appeal therefrom.

By the Gourt. — Appeal dismissed'.