Kellogg v. Smith

10 Wis. 135

• Court: Wisconsin Supreme Court
• Decided: December 14, 1859
• Status: Published

Opinion

By the Court,

Cole, J.

The appeal in this case must be dismissed. The notice of appeal states that the appeal is from an order of the circuit court of Winnebago county, made on the 7th day of April, 1859, “denying a motion made by said defendant to set aside and strike from the file the judgment roll.” We find no such order in the return of the clerk. The return shows an order made on the 7th of April, 1859, in this cause, in which it was ordered that the amended complaint be struck from the files, with leave to the plaintiff to re-file and re-serve the same on the-payment of the costs, theretofore ordered and taxed with- five dollars in addition, within twenty days.

Whatever the appellant’s intention might have been, he does not seem to have taken any appeal from this latter orderat least, the record does not show that he has. And since the order described in this notice of appeal has not been returned by the clerk, it is clearly not before us for examination. No other course is left but to dismiss the appeal.