Joint School District No. 7 of the Brighton v. Kemen

32 N.W. 42, 68 Wis. 246, 1887 Wisc. LEXIS 84

Opinion

'Lyon, J.

This appeal is from a judgment of the circuit court dismissing the plaintiffs complaint, with costs, for non-compliance with an order theretofore made in the cause requiring the plaintiff to file security for costs. The appeal was taken and perfected before the posts were taxed and inserted in the judgment. It was therefore prematurely taken, and must be dismissed. Smith v. Hart, 44 Wis. 230, and cases cited; Haseltine v. Simpson, 61 Wis. 427; Hoye v. C. & H. W. R. Co. 65 Wis. 243; Ballou v. C. & N. W. R. Co. 53 Wis. 150.

If the case is within the provisions of ch. 202, Laws of 1882 (which is not here determined), the same result follows, for the appeal was taken within less than sixty days after the finding of the court that the plaintiff was in default in respect to filing security for costs, upon which finding the judgment is predicated. Hence the time had not expired which the statute allows the prevailing party for perfecting his" judgment. Until this was done, or, not being done, until the time for doing so had expired, the judgment was imperfect and not appealable. Hoye v. C. & N. W. R. Co. supra.

If the appeal be regarded as from an order for judgment, instead of a judgment (which seems to be. the view taken of it by the counsel for the plaintiff), it must still be dismissed. A mere order for judgment is not appealable. See Johannes v. Youngs, 42 Wis. 401.

By the Court.— The appeal is dismissed.