Jones v. Pease

21 Wis. 654

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Dixon, C. J.

The judgment directs the execution and delivery of a deed of the undivided half of the mill property, but does not in terms require the defendant to give possession to the plaintiff The possession will follow the deed, when that has been properly delivered to the plaintiff pursuant to the j udgment; but it cannot be lawfully demanded or enforced before such delivery. Eor this reason it is not a case within the provisions of section 25, chap. 264, Laws of 1860, under which the order for further security was made. It is governed by the preceding section 24 of the same chapter. The defendant having perfected his appeal by the service of notice and the execution of the undertaking for costs and damages required by section 21, and also having executed and deposited the deed as prescribed in section 24, all farther proceedings in the circuit court were stayed. Laws of 1862, chap. 403; Hudson v. Smith, 9 Wis., 122. It was not competent, therefore, for that court, after the appeal had been thus perfected and proceedings stayed, to require the appellant to give further security by undertaking, or, as alternative relief, to direct the clerk to deliver the deed to the plaintiff in advance of a determination of the cause in this court.

By the Court. — Order reversed.