Hassler v. Sheets

172 N.W. 713, 169 Wis. 419, 1919 Wisc. LEXIS 160

• Court: Wisconsin Supreme Court
• Decided: May 27, 1919
• Status: Published

Opinion

Rosenberry, J.

While the direction of the civil court is in form an order, it is in fact and in effect a judgment, and an appeal may be taken therefrom. Spehn v. Huebschen, 83 Wis. 313, 53 N. W. 550. An order dismissing an action is to be distinguished from an order directing judgment of dismissal. Sutton v. C., St. P., M. & O. R. Co. 114 Wis. 647, 91 N. W. 121. The civil court was erroneously of the opinion that payment of the rent due and tender of the costs of action entitled the defendant to a dismissal of the action in unlawful detainer. Proceedings for unlawful detainer are prescribed by ch. 145, Stats. 1917. Sec. 3364 provides:

“After the- return of the summons served as above provided, and at the time and place named therein, if the defendant appear he may answer the complaint; and all matters in excuse, justification or avoidance of the allegations of the complaint must be answered specially; and thereupon the justice shall proceed to hear and determine the action unless he shall adjourn the trial as provided in the next section.”

Sec. 3366 provides:

“If upon the trial of any such action the justice or jury shall find the defendant or any of several defendants guilty of the allegations in the complaint the justice shall thereupon enter judgment for the plaintiff to have restitution of the premises, and tax the costs for the plaintiff, and when the action is brought under the provisions of section 3360 shall impose a fine,” etc.

The civil court should have proceeded with the trial and awarded judgment as provided by law. In this case the defendant answered none of the allegations of the complaint specially, but by tendering the amount of the rent admitted the allegations thereof to be true. Upon the appeal the circuit court so treated the matter and properly awarded the plaintiffs judgment of restitution of the premises with costs. The judgment of the circuit court is therefore right.

By the Court. — Judgment affirmed.