Kuehn v. Neroz

Wisconsin Supreme Court

Kuehn v. Neroz

111 N.W. 724, 131 Wis. 610, 1907 Wisc. LEXIS 249

CourtWisconsin Supreme Court

DecidedApril 30, 1907

StatusPublished

Cited by1 cases

This text of 111 N.W. 724 (Kuehn v. Neroz) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kuehn v. Neroz, 111 N.W. 724, 131 Wis. 610, 1907 Wisc. LEXIS 249 (Wis. 1907).

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Opinion

Marshall, J.

Counsel present the case as if the proceedings before the justice in the replevin action were a part of the record in the garnishee action as it was closed in the circuit court, and were before us as a part of the judgment roll on this appeal. That is a mistake. The garnishee action [612]*612while incident to, is practically separate from, the replevin action. The pleadings in the former are the affidavit for the issuance of the garnishee summons and the answers thereto. The judgment roll in the circuit court consists of such pleadings, the summons, the order for judgment, and the judgment. There being no bill of exceptions containing anything outside of such judgment roll, that is all there is before us for consideration. That is elementary.

In Butler v. Gillis, 104 Wis. 421, 80 N. W. 735, quite a similar situation to that here was presented. The action was commenced in the municipal court of Douglas county. It was carried by appeal from the judgment there rendered to the circuit court for such county. In the latter court there was a motion based upon the papers in the case and others for a judgment reversing the judgment of the municipal court, in part, and the motion was granted. On appeal to this court there was no bill of exceptions incorporating into the record matters outside the judgment roll proper. The judgment was affirmed, the court holding that it could not look beyond such judgment roll to test the validity of the judgment. Jos. Schlitz B. Co. v. Washburn B. Asso. 122 Wis. 515, 100 N. W. 832, is to the same effect.

From the foregoing it will be seen that in order to enable appellant to show here that the judgment of dismissal could not be justified by jurisdictional defects in the replevin proceedings and execution, the same should have been incorporated into the bill of exceptions, and in order to enable respondents to show the contrary, since a bill of exceptions was settled purporting to relate all that occurred on the dismissal, it was important that such proceedings and execution should not be omitted therefrom.

As the matter stands we have only the judgment roll in the garnishee action before us. The bill of exceptions, as stated, does not add anything material to the record. Such roll does not disclose any substantial defect. On the oral ar-[613]*613goment none was claimed to exist, except in the replevin proceedings and execution; none in the record proper. Therefore, the judgment must he reversed and the cause remanded for further proceedings according to law, though the reversal must rest upon different grounds than those assigned.

By the Court. — The judgment is reversed, and the cause remanded for further proceedings according to law.

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Marshall, J.

Counsel present the case as if the proceedings before the justice in the replevin action were a part of the record in the garnishee action as it was closed in the circuit court, and were before us as a part of the judgment roll on this appeal. That is a mistake. The garnishee action [612]*612while incident to, is practically separate from, the replevin action. The pleadings in the former are the affidavit for the issuance of the garnishee summons and the answers thereto. The judgment roll in the circuit court consists of such pleadings, the summons, the order for judgment, and the judgment. There being no bill of exceptions containing anything outside of such judgment roll, that is all there is before us for consideration. That is elementary.

In Butler v. Gillis, 104 Wis. 421, 80 N. W. 735, quite a similar situation to that here was presented. The action was commenced in the municipal court of Douglas county. It was carried by appeal from the judgment there rendered to the circuit court for such county. In the latter court there was a motion based upon the papers in the case and others for a judgment reversing the judgment of the municipal court, in part, and the motion was granted. On appeal to this court there was no bill of exceptions incorporating into the record matters outside the judgment roll proper. The judgment was affirmed, the court holding that it could not look beyond such judgment roll to test the validity of the judgment. Jos. Schlitz B. Co. v. Washburn B. Asso. 122 Wis. 515, 100 N. W. 832, is to the same effect.

From the foregoing it will be seen that in order to enable appellant to show here that the judgment of dismissal could not be justified by jurisdictional defects in the replevin proceedings and execution, the same should have been incorporated into the bill of exceptions, and in order to enable respondents to show the contrary, since a bill of exceptions was settled purporting to relate all that occurred on the dismissal, it was important that such proceedings and execution should not be omitted therefrom.

As the matter stands we have only the judgment roll in the garnishee action before us. The bill of exceptions, as stated, does not add anything material to the record. Such roll does not disclose any substantial defect. On the oral ar-[613]*613goment none was claimed to exist, except in the replevin proceedings and execution; none in the record proper. Therefore, the judgment must he reversed and the cause remanded for further proceedings according to law, though the reversal must rest upon different grounds than those assigned.

By the Court. — The judgment is reversed, and the cause remanded for further proceedings according to law.

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111 N.W. 724, 131 Wis. 610, 1907 Wisc. LEXIS 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuehn-v-neroz-wis-1907.

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