Kelly v. Town of Fond du Lac

29 Wis. 439

Opinion

Lyon, J.

Motion to strike bill of exceptions from the judgment roll in the action. The question presented by this motion is, whether tho circuit has power to grant an order, after the expiration of sixty days from the service of written notice of the entry of judgment, giving the appellant leave to serve a bill of exceptions and to have the same settled. The ease of Smith v. Smith, 19 Wis., 522, is decisive of this question, and resolves it in the affirmative. That was a case of exceptions to the report of a referee. The law gives a party ten days after written notice of the filing of the report, in which to file exceptions thereto. Laws of 1860, ch. 264, sec. 14. The report was in favor of the plaintiff, and the defendant failed to file exceptions thereto within ten days after such notice was given. Thereafter upon notice of motion duly given to the plaintiff, and on affidavits satisfactorily excusing such failure, the circuit court granted an order giving the defendant further time in which to file his exceptions to the report. It was held that the court had power to make the order. The time within which a bill of exceptions is to be served and settled is prescribed in the same section (Laws of 1860, ch. 264, sec. 12); and the power of the court to grant leave to serve and settle the same after such time has expired, in cases where the delay to do so is satisfactorily excused, rests upon precisely the same grounds. In this case the delay was satisfactorily excused.

By the Court. — The motion is denied, with costs.