Ott v. Boring

110 N.W. 824, 131 Wis. 472, 1907 Wisc. LEXIS 185

• Court: Wisconsin Supreme Court
• Decided: April 30, 1907
• Status: Published

Opinion

The following opinion was filed February 19, 1907:

Dodge, J.

1. The first position contended for by respondent, and adopted by trial court in an opinion filed, was to the effect that the evidence did not disclose an acceptance by the plaintiff of the written proposition quoted in the statement of facts, except as to the $15 per week compensation. The evidence on the subject is that the plaintiff received this proposition and, immediately thereafter, commenced and has continued to comply in all respects with the terms thereof on his part. From such facts no reasonable inference can be drawn that his intention was to accept only one part of the tendered compensation to him for such acts and to reject the other part. If the acts of the plaintiff in going to Ashland and associating himself with Mr. Pool were done in response to this proposition, they are plenary proof of the acceptance thereof ae-cording to its terms, in the absence of any evidence to show a-contrary purpose or understanding.

2. There is considerable confusion in the contentions made by different counsel for appellant as to the force and effect of the contract resulting from Mr. Pool’s written proposition and plaintiff’s acceptance thereof. At one moment they seem to contend that a partnership was immediately created thereby, and at another that it was a mere employment with a promise of additional payment at some indefinite date in the future; but whether that additional compensation was to be in the form of a partnership, or a mere transfer of title to one-quarter of the property in the business, they are not very clear, nor, indeed, whether the contract was self-executing so that at some time an interest did, by force of law, vest in plaintiff, or some conveyance from Pool was necessary. After a careful examination of the writing in the light of the conduct of both parties, which certainly indicated complete-concurrence by them in their understanding of their relations, we think it plain that no copartnership was originally formed between them. Mr. Pool’s agreement was that some time in the future, in a certain contingency, “I will give you a one-quarter interest in the store,” and the conduct of the parties-at all times was consistent with the understanding that Mr. Pool was the owner of this business, exercising full autonomy and control thereover as owner, and that the time had never come when he had executed that promise by giving or transferring any part of the ownership thereof to the plaintiff. This view, of course, might not be inconsistent with the idea that- some equitable rights had existed in the plaintiff at all times such as to enable him to protect against unreasonable or destructive conduct upon the part of Pool in managing the business so as to impair the probability that the time would ever come when plaintiff would be entitled to an interest, or would impair the value of that interest when such time did come, thus imposing a trust or fiduciary quality upon Pool’s 'title and management. This right might -well exist without any actual ownership having yet been acquired. Suffice it to ■say that it is obvious that Mr. Pool’s management never did ■at any time arouse disapproval by the plaintiff, but that he seems at all times to have had entire confidence in the wisdom ■and fairness thereof.

Having concluded that this was a contract that at some 'time Mr. Pool was to transfer to plaintiff a share' either in the property or business, the next question of construction is when that duty was to be performed, so that if the transfer were not made Mr. Pool was in default and the plaintiff had a present complete cause of action. The proposition itself prescribed the time as “when I shall be able to withdraw from the concern the sum of $10,000 besides keeping the stock up.” The view contended for by the respondent, and .adopted by the trial court, was that, whenever that business had so increased that it was possible to withdraw $10,000 and leave a stock equal to that existing at the time of the contract, the agreement had been fully performed by the plaintiff and the transfer was due. We are persuaded that this is altogether too narrow a view of the situation. These parties, or rather Mr. Pool, was about to establish a business in Ashland, obviously with the expectation of a successful development thereof. Haturally, he hoped that the new city and surrounding country would grow in population, and, as phrased in the very proposition, the purpose of associating plaintiff with himself was “to make the store the greatest success possible.” Obviously that was not to be accomplished by operating with a stock confined to some $10,000 in value, as at the start. It involved increasing varieties of goods, or departments, increasing volume of stock in each department, .and, undoubtedly, the building up of a larger business. This 'hope and expectation is well illustrated by the course of -events, fully understood by Pool and, at least in a degree, apparent to plaintiff, and obviously acquiesced in by both parties as in accordance with, their hope and purpose. In two .years the net inventory worth of the business had been increased to $29,000, in three years to $37,000, and so onward, until in 1897 it reached $71,000 and in January, 1904, $119,000. 'Mr. Pool had deemed necessary, or at least advisable, for the proper development of the business to organize it on the lines of what is called a department store, so that, instead of the little establishment such as originally opened, the various kinds of goods were classified into departments, necessitating a department head to keep track of the demands and to see that every department was equipped with such supplies of goods in quantity and variety as would meet the demands of customers, and attract others, in competition with other dealers. We reach the conclusion that “keeping up the stock” in this contract was used and understood by both parties to mean the maintenance of such a volume and variety of merchandise as would most enhance the ultimate purpose of making the store “the greatest success possible,” and that only when, consistently with the most effective promotion of that purpose, Mr. Pool could withdraw from the business $10,000, should he be under obligation to perform his promise to give the plaintiff the one-quarter interest.

Further than this, it is undisputed that the whole policy of the business rested with Mr. Pool and that such was the contemplation of the parties from the first. He decided what stocks to buy, what departments to establish, what credits to give, and what extent of indebtedness to incur. With him rested the judgment and discretion as to what were the needs of the business, and he, better than any one else, was capable of deciding when, consistently with the best policy, he was able to withdraw $10,000. Just this situation must have been in the contemplation of the .parties, and just this autocracy would doubtless have been insisted on by Mr. Pool had any question arisen in regard to it. Plaintiff’s confidence in Mr. Pool’s ability, wisdom, and integrity is obvious throughout. So that there can he little doubt that this contract, as between the parties, meant that not until Mr. Pool, in the exercise of honest and reasonable judgment, deemed that he was able to withdraw this sum, consistently with keeping up the most advisable volume of business, should plaintiff have the right to demand a transfer of one quarter thereof. Doubtless here,' again, if difference of opinion arose and plaintiff felt that Mr. Pool was unreasonably delaying the consummation of his rights to share in the business, he could have made demand, and, if. that demand were resisted, could have made application to a court to inquire whether the situation was such that Mr. Pool, in the reasonable exercise of his judgment, could say that it was still for the promotion of the purposes of their association to further continue building up the business with the retention of his original $10,000 capital. But, during all these years, the action of Pool in refraining from withdrawing such money and continuing it in the business to enable its further advancement and progress and in increasing the establishment was a most unambiguous assertion on his part that the time had not come when, under the terms of the contract, he was able to withdraw it and keep up the stock, and, -so long as plaintiff was willing to assent to this view, it could not lie in the mouth of either Mr. Pool or his representatives to assert the contrary ; especially as plaintiff was not informed at any time of the exact business conditions, although, of course, as a man of reasonable intelligence he knew that the business- was largely expanding and the stock greatly increasing. He was not informed or shown the net results of the annual inventories and balance sheets; he was not informed to what extent the enlarged stock was offset by indebtedness, so that the safety of the business might be impaired by the withdrawal of so large a sum as $10,000, and meanwhile Mr. Pool continued, at least till 1900, within the limitation period, to receive Otfs services, necessarily increasing in amount and value with the enlargement of the business, at the original weekly stipend, which it is difficult to believe would have been considered reasonable by either party but for the promised contingent compensation.

One event is claimed by the respondent to have marked a time when, beyond dispute, it is established that $10,000 could with safety have been withdrawn by Mr. Pool. That is a time when, after the stock had been largely destroyed by fire and after a considerable period of litigation, some $50,000 of insurance money was collected, and Mr. Pool in 1896 made a demand-loan of $15,000 thereof to J. Y. Parwell & Co., of Chicago, from whom he was accustomed to buy very largely the goods for the business, and it transpired that this credit was never drawn upon for the purchase of goods, but remained as a loan up to the time of Mr. Pool’s death, interest being paid or credited periodically. This credit was never treated as withdrawn from the business. It was carried as an asset upon inventory and the recurring interest was applied from time to time upon bills of goods purchased from Parwell. The loan was made at a time when a wholly unusual quantity of money was on hand and when the question as to the extent to which the replacement of the stock destroyed by fire would demand the actual use of money was uncertain, and was a transaction with a concern upon whom obviously the business was dependent in large part for the supply of its merchandise under favorable circumstances. "We are not prepared to say that, in Mr. Pool’s judgment, such a sum as this might not well be used in that way in the business as promotive of its prosperity, and that his very act in treating it as still in and of the business instead of belonging to himself separate and apart therefrom was an assertion of the fact that he did not withdraw it and did not deem it best so to do.

We reach the conclusion that Mr. Pool’s acts show conclusively, as against him and his representatives, that the time never did come when Re was able to withdraw $10,000 and keep up the stock in the contractual sense of those words? hence that no cause of action upon the contract or for breach of it arose in his lifetime against which any statute of limitations ran. When his death came, of course he could not launch the contemplated partnership, if such were the contemplation, and his representatives refused plaintiff a share in ,the property, so that a money cause of action then arose independently of whether any action to specifically perform the contract might have been instituted. Hill v. Palmer, 56 Wis. 123, 129, 14 N. W. 20; Treat v. Hiles, 68 Wis. 344, 32 N. W. 517; Seymour v. Cushway, 100 Wis. 580, 593, 76 N. W. 769.

Much the same-conclusion results from the consideration that no money demand at law could accrue in plaintiff’s favor until a demand by him and refusal by Pool to perform the contract according to its terms. Thereby, as we have expressed our view of its construction, Ppol agreed, upon a certain contingency, either to form a partnership with Ott or to convey to him one fourth of the net assets of the business after deducting $10,000. Any action upon the contract must have sought enforcement of that particular duty. Money liability could arise only upon refusal of a demand that it be performed. Martin v. Fox & Wis. Imp. Co. 19 Wis. 552, 558; Noonan v. Ilsley, 21 Wis. 138, 143; Linderman v. Disbrow, 31 Wis. 465; Bannister v. Patty’s Ex’rs, 35 Wis. 215. Such demand and refusal were essential to the existence of a cause of action for money, not merely a step in the remedy to enforce it. Under our statute of limitations, especially sec. 4249, Stats. (1898), the time does not run until complete accrual of the cause of action. Therefore, where some condition precedent to the right of action exists, whether it be a demand and refusal or some other act or contingency, the cause of action does not accrue, por the statute begin to run, until that condition is performed. Noonan v. Ilsley, supra; State ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549, 4 N. W. 641; Tucker v. Grover, 60 Wis. 240, 19 N. W. 62; Wells v. G. B. & M. C. Co. 90 Wis. 442, 64 N. W. 69; Lowe v. Ring, 106 Wis. 647, 82 N. W. 571; Morey v. Fish Bros. W. Co. 108 Wis. 520, 84 N. W. 862; Buttles v. De Baun, 116 Wis. 323, 327, 93 N. W. 5; Koelzer v. First Nat. Bank, 125 Wis. 595, 104 N. W. 838; Chew v. Baker’s Adm’rs, 4 Cranch C. C. 696, Fed. Cas. No. 2,663; Eames v. Savage, 14 Mass. 425; Cole v. Wright, 70 Ind. 179; Quinn v. Gross, 24 Oreg. 147, 33 Pac. 535; Hill v. Haskin, 42 Cal. 159; Martin v. Walker, 68 Cal. 317, 9 Pac. 185; Lincoln v. Purcell, 2 Head, 143.

It should perhaps he recognized, parenthetically, that the universality of the above rule is subject to some exceptions in certain jurisdictions, as, for example, where the defendant has so unambiguously repudiated his duty as to show that demand would be futile, or where the-condition precedent to suit is merely a step in the remedy and is wholly within plaintiff’s control (Stillwater & St. P. R. Co. v. Stillwater, 66 Minn. 176, 68 N. W. 836; Schriber v. Richmond, 73 Wis. 5, 40 N. W. 644), or the delay of the plaintiff in making demand constitutes laches (State ex rel. Slingerland v. Norton, 59 Minn. 424, 61 N. W. 458). To what extent such exceptions should he approved we need not declare, for the instant ease does not involve them. True, respondent claims that laches, generally, ought to he ascribed to appellant, but we can discover no facts which need have urged an ordinarily prudent and intelligent man to take action. As we have concluded the parties must have understood this contract, the initiative, at least to declare the period when wise business policy justified withdrawal of $10,000, rested with Pool. He, presumptively, had in mind the existence of his contract with appellant, and the latter had no reason to suspect that he was acting otherwise than fairly and honestly in continuing the postponement of' that time. Plaintiff was not informed of the financial condition nor the credit of the business, or other elements hearing upon its needs. He was industriously performing his part of the contract, and Pool was accepting that service at a weekly stipend which, it is clear, the parties understood was meager for the laborious and responsible service rendered. Plaintiff’s interests were enhanced by continuance of this capital in the business, and Pool’s might have been if it yielded greater profits than it would earn interest if withdrawn, as to which he alone could judge. In all this situation we can see no reason why plaintiff should not yield to Pool’s judgment and presumptive wish. The loan to Parwell is pressed on our attention again in this connection, but plaintiff is not shown to have had any sufficient knowledge of either the amount or the terms of that transaction as to suggest that it constituted any withdrawal of capital from the business or a declaration by Pool of termination of the pre-existing contract relations. The situation was one to emphasize a rule laid down in some cases, that, where all knowledge and control is with one party, the other may assume that conditions continue without change until informed to the contrary by the party having knowledge and power or election to change them. Neilson v. Grignon, 85 Wis. 550, 553, 55 N. W. 890; 19 Am. & Eng. Ency. of Law (2d ed.) 195; Chew v. Baker’s Adm’rs, 4 Cranch C. C. 696, Fed. Cas. No. 2,663; Quinn v. Gross, 24 Oreg. 147, 33 Pac. 535; Perry v. Smith, 31 Kan. 423, 2 Pac. 784; Cooper v. Copper, 132 Ill. 80, 23 N. E. 246; King v. Rice, 12 Cush. 161. We are persuaded that, under the circumstances of this case, the absence of any repudiation of the contract, or of plaintiff’s rights thereunder, by word or act of Pool, and the absence of demand for execution of the contract, exclude the accrual of the present cause of action at any time prior to Pool’s death so as to start the statute of limitations.

Our conclusion is that appellant has established his full and complete performance of a contract according to the terms of the written proposal of October 17, 1887; that action for neither the share of the property thereby promised, nor for its equivalent in money, is barred by any statute of limitations, and that his recovery should be the money value of the one-fourth interest in the net money worth of the business at the time of presenting his claim in county court, less $7,500, being the balance of the $10,000 which Pool was entitled to withdraw; from which quarter should be deducted plaintiff’s unexplained drafts from the business of $2.31 per week, in excess of the agreed $15, from some time in 1900; and that the balance should draw interest from the date of filing claim in county court. Since neither the net money value of the property of the business, nor the exact period of the excess weekly stipend, have been found by the trial court, and the evidence thereon is not clear,- we deem it safer that those questions be considered and passed on in that court in the light of such further evidence thereon as may be presented.

By the Gourt. — Judgment reversed, and cause remanded for further proceedings in accordance with the foregoing opinion.

On motion to recall the record from the circuit court: The judgment of this court reversing the judgment below was rendered and entered February 19, 1907. -On March 25, 1907, the plaintiff paid the clerk’s fee, applied for the issue of a remittitur, and, accordingly, one was issued by the clerk and the record transmitted to the, circuit court for Ashland county, where, according to the affidavits, it was filed on March 27th, and notice thereof given to the respondent on March 29th. At that time, and almost continuously from soon after the announcement of our decision, the defendant was busy obtaining affidavits of newly-discovered evidence as a basis for a motion to this court tó modify the mandate so as to permit tbe trial court to bear and pass upon a motion for a new trial. He served notice of sucb motion on April 2d, returnable April 12tb, and filed tbe same in tbis. court on April 3d. On April 1st be attempted to induce tbe clerk of tbe circuit court to return tbe record bere, but failed, and on April 4th, conceiving that tbe presence of tbe record upon our files was necessary to tbe bearing of tbe said motion, be procured an order to show cause, returnable on April 9th, why tbe remittitur, record, and files should not be transmitted to tbe clerk of tbis court by tbe clerk of tbe circuit court forvAshland county, and why be should not have sucb other relief as might be just. On April 9th that motion was beard and is now to be decided.

W. M. Tomhins and B. Sleight, for tbe respondent, in support of tbe motion,

Eor tbe appellant, opposing tbe motion, there was a brief by Sanborn, Lamoreux & Pray, attorneys, and Burr W. Jones, of counsel, and oral argument by Mr. F. B. Lamo-reux and Mr. Jones.

Tbe following opinion was filed April 30, 1907:

Dodge, JV

Tbe salient facts are that tbe record remained bere more than thirty days after the rendition of judgment; no application was made to tbis court for an order to retain it longer; it was remitted in less than sixty days, and tbe present motion to secure its return was made within tbe sixty days but after remittitur was filed in circuit court. Tbe contention on tbe part of tbe plaintiff is that when tbe remittitur was regularly and in obedience to law transmitted to tbe circuit court tbe jurisdiction of tbis court over tbe cause, and consequently power over its judgment, terminated, and that it has no power either to act upon that judgment or to recall tbe record from tbe circuit court. Tbe contention of tbe defendant is that, by virtue of tbe statute, our jurisdiction persists during a period of sixty days from the judgment, and that the mere physical transmission of the record can have no effect upon it.

The question of the period of jurisdiction of purely appellate courts is a somewhat intangible one, and not to be decided always upon the same principles and considerations as those which regulate the jurisdiction of courts of general jurisdiction having the function not only of trial and judgment, but also of execution of the judgment. , It seems from an examination of the authorities to be well-nigh unanimously declared that, in the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction. 2 Ency. Pl. & Pr. 359, 384; 2 Spelling, New Tr. & App. Prac. §§ 733, 734; Hayne, New Tr. & App. § 293; Legg v. Overbagh, 4 Wend. 188; cases collected in note, 21 Am. Dec. 118; Delaplaine v. Bergen, 7 Hill, 591; Browser v. McArthur, 7 Wheat. 58; Peck v. Sanderson, 18 How. 42; Underhill v. Jericho, 66 Vt. 183, 28 Atl. 879; Sullivan v. Speights, 14 S. C. 358; Caldwell v. Bruggerman, 8 Minn. 286; Dempsey v. Billinghurst, 7 S. Dak. 564, 64 N. W. 1124; Leese v. Clark, 20 Cal. 387; Richardson v. Chicago P. & P. Co. 135 Cal. 311, 67 Pac. 769; Ward v. Springfield F. & M. Ins. Co. 12 Wash. 631, 42 Pac. 119; State ex rel. Haskell v. Faulds, 17 Mont. 140, 42 Pac. 285. This apparently rests largely upon the doctrine that when that act is done the jurisdiction of the lower court, which has been suspended meanwhile, becomes re-established, and that both courts cannot have jurisdiction over the cause. Generally, too, it is held, in the absence of statute, that the power of an appellate court over its judgment, like that of courts generally, persists to the end of the term at which the judgment is rendered, 'and then absolutely terminates, except as it may be terminated earlier by the retransmission of the cause to the trial court. This court’s power oyer its judgments seems to have bad no statutory regulation, either by way of limitation or extension, until 1860, when was enacted cb. 264, of wbicb sec. 7 provided that the clerk of this court should remit the papers within thirty days after; the judgment, “unless the supreme court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such party to move for a rehearing.” In 1878 “sixty days” was substituted for “thirty days” in that statute. Sec. 3071, Stats. (1898). After the passage of the law of 1860, and in 1874, the court gave general direction to its clerk to retain all records for the full thirty days, in absence of consent of parties to the contrary. See Pringle v. Dunn, 39 Wis. 435, 442. That direction later became crystallized in a rule which, prior to the revision of rules in 1906, was embodied in Rule XX, and is now embodied in Rule 37. The argument is that the intention of the legislature to be gleaned from the act of 1860 and its subsequent amendment is to enact that the jurisdiction of this court for the purposes of rehearing shall persist for a period of sixty days, and thereby is repudiated the previously well-established doctrine that it could not persist for any time after the transmission of the record. It will be at once observed that there is nothing in the words of the statute at all necessarily declaring such purpose. The statute, instead of ordering that the record shall remain or that jurisdiction shall persist during the sixty days, commands that the clerk shall remit the record within that sixty days. Hence, at any period after the rendition of the judgment, when he does remit, he acts in obedience to the statute, except as his duty is controlled by the rule of court prohibiting such transmission within the first thirty days. It is pretty clearly indicated that the legislature did not intend to abrogate or repudiate the doctrine of the necessity of the presence of the record for any motion for a rehearing, for they expressly authorized the court to keep the record here throughout said sixty days “for the purpose of enabling such, party to move for a rebearing” — a very clear intimation of tbe supposition of tbe statute makers tbat sucb retention was necessary to enable sucb a motion. It should perhaps be remarked here, for clearness of terminology, tbat tbe words “motion for a rehearing,” as used in this statute, and as we have thus far used them in this opinion, are to be construed broadly, as including any motion involving a setting aside or modification of tbe judgment actually rendered by' tbe court, inclusive both of tbe motion for a rehearing, strictly so called, and those motions for tbe modification of a judgment, but not for a re-argument of tbe case, which have come to be termed motions in tbe nature of a motion for a rehearing. Hocks v. Sprangers, 113 Wis. 123, 89 N. W. 113.

It appearing, as we have already stated, tbat tbe statute in question can only receive tbe effect claimed for it by the defendant by some construction and not by tbe necessary force of its words, we turn to tbe construction which it has received from time to time by tbe court. Erom a pretty complete examination of all cases bearing upon it, it may be confidently asserted tbat in no case has. tbe court entertained a motion for a rehearing, or one of tbat nature, after tbe record bad passed to tbe court below, and in a number of cases the court has refused to entertain sucb a motion .upon tbe ground clearly declared tbat tbe remission of tbe record bad taken away its power to do so, although it is also true tbat in the great majority, if not in all, of sucb cases there may have been as another ground of loss of jurisdiction tbe expiration of tbe entire statutory period permitted for tbe retention of tbe record. Tbe cases are numerous, but an express reference to a few will suffice. Tbe first case is Ogilvie v. Richardson, 14 Wis. 151. At that time tbe statute required remission of tbe record within thirty days and tbe rules required a motion for rehearing to be made within twenty days. 3 Pin. 503. Tbe decision was rendered July 10th, tbe record was remitted August 2d, and motion for rebearing made October 19th, all at tbe same term of court. Tbe court refused to entertain tbe motion for a rehearing, and said:

“Having been properly remitted to tbe circuit court, tbe questions involved are no longer before us; and we know of no way to get tbe cases here again, unless possibly it should be-done by consent of tbe parties by setting aside tbe remittitur and returning tbe record. When cases have been oncp decided here, and regularly remitted after tbe time to move for a rehearing has expired, tbe function of this court with respect to those cases is exhausted.”

It will be observed that tbe remission of the record was at tbe end of about twenty-two days, and it is declared “tbe cases; were regularly remitted to tbe circuit court.” Tbe principle declared in tbe opinion would have as much excluded jurisdiction on August 3d as on October 19th. Tbe next of significance is Hopkins v. Gilman, 23 Wis. 512. Tbe record was transmitted about forty-five days after tbe decision. The application, apparently at tbe same term, was to recall the-record and to allow a motion for a rehearing or modification. Tbe court said:

“Tbe remittitur, then, -has properly issued, and tbe record has been regularly sent down to tiie court below. This court has no longer ,any control over tbe cause. It has lost jurisdiction over it. The court below has become repossessed of the cause. It has been decided a number of times by this court that when a remittitur has regularly issued, and tbe record has been sent down to the court below, this court has lost ju-r risdiction over tbe cause.”

In Pringle v. Dunn, 39 Wis. 435, it was first definitely reasoned that tbe statute requiring the remission of tbe record within thirty days took away the previously existing inherent jurisdiction of the court over its judgments throughout the remainder of the term. Of course, this conclusion could' have been reached only on the theory that the presence of the-record is essential to jurisdiction, for there were no words in that statute declaring that the court’s power over its judgments should not persist beyond the thirty days; that had to be inferred from the command that the record should not remain. In Trowbridge v. Sickler, 48 Wis. 424, 428, 4 N. W. 563, it was declared:

“After the remittitur has been regularly sent to the court below, and actually filed with the clerk of such court,■the, supreme court then loses jurisdiction of the cause, and the court below only has jurisdiction therein.”

The decision in Hocks v. Sprangers, 113 Wis. 123, 89 N. W. 113, much relied on by respondent, suggests no distinction, as to the period of jurisdiction, between strict motions for rehearing and motions for modification of our judgments ; it merely declares that our then rules refusing to receive the former after thirty days did not exclude the latter class of motions during the term of our jurisdiction. Other cases having some significance upon this subject are Estey v. Sheckler, 36 Wis. 434; Pierce v. Kelly, 39 Wis. 568; Bonin v. G. B. & M. R. Co. 43 Wis. 210; Krall v. Lull, 46 Wis. 643, 1 N. W. 217; Williams v. Williams, 55 Wis. 300, 12 N. W. 465, 13 N. W. 274; Patten P. Co. v. G. B. & M. C. Co. 93 Wis. 283, 66 N. W. 601, 67 N. W. 432; Hocks v. Sprangers, supra; Ledebuhr v. Wis. T. Co. 115 Wis. 214, 217, 91 N. W. 1012. A somewhat analogous question, arising upon application for change of venue between circuit courts, was discussed in Servatius v. Pickel, 30 Wis. 507, where it was in effect held that the court making an order for such change had jurisdiction to modify it so. long as the record remained, but would lose its power as soon as the record had been transmitted to another circuit court so as to vest jurisdiction there.

In the light of these decisions of our own court we cannot avoid the conviction that the rule has been thoroughly adopted that, when the record upon an appeal has been regularly transmitted to and filed with the court from which it originally came, this court’s jurisdiction over the cause, as also to vacate or modify its own judgment, is at an end; that the effect of the statute is to impose upon the clerk the duty, as an officer of the law, to transmit the record at any time within sixty days after the decision of the court, subject, within that period, to such order as the court may make in protection of proper opportunity to make motions for rehearing, whether strictly such or of that nature; so.that, whenever the clerk, without disobedience of any such order or rule of court, does, as in this case, transmit the record within the sixty days, it is regularly and lawfully transmitted and the jurisdiction of this court is terminated. It should perhaps be said, for certainty, that this limitation upon the power of the court to grant rehearing or to vacate or modify its judgment has no relation to that other power, existent in all courts and at all times, to correct the mere record of the judgments which they render so as to make the record properly express that judgment. Hill v. Hoover, 5 Wis. 386; Will of Cole, 52 Wis. 591, 9 N. W. 664. Neither do we mean to suggest that the mere physical presence of the record in this court can, after the expiration of the sixty days, continue the jurisdiction of this court, for such presence is unlawful, and the behest of the statute that it be remitted within the sixty days must be given full effect to terminate the jurisdiction at that time notwithstanding a disobedience thereof by the clerk. In such case, while the record may be here physically, it is not lawfully here. Pringle v. Dunn, 39 Wis. 435, 442. Nor do we suggest that any irregular or unlawful departure of the record from our files can have any effect. The unlawful or unauthorized act of the clerk in transmitting it would be as inefficient as his unauthorized act in retaining it Rowland v. Kreyenhagen, 24 Cal. 52; Vance v. Peña, 36 Cal. 328.

We have not overlooked the position now apparently adopted in New York, that although all appellate jurisdiction of the cause is lost by the filing of the remittitur in the lower court, and that court thereupon vested with complete jurisdiction, nevertheless the appellate court may recall the record and re-assume jurisdiction in order to review its former decision. Cardozo, Court of Appeals, § 133; Franklin B. N. Co. v. Mackey, 158 N. Y. 683, 51 N. E. 178. It is, however, antagonized by holdings elsewhere and by the declarations of this court in the eases cited, and we do not find reason to justify its adoption.

Having reached the conclusion that we have no jurisdiction over the cause and can make no order either with reference to our judgment or with reference to the record, it is not very material to discuss whether otherwise this motion could or would be received by the court in defiance of our present Rule 42:

“No motion as to any final determination made by the court, except a motion to correct mistakes in the record of this court, will be heard unless made within thirty days after such determination.”

Counsel contend that this does not apply to a motion of this sort, and predicate such contention upon what was said in Hocks v. Sprangers, 113 Wis. 123, 89 N. W. 113, as to Rules XX and XXI of the old rules. Rule XX of the old rules, like Rule 37 of the rules of 1906, applied to a motion for a rehearing, strictly so called, while Rule XXI, in its terms, applied to any motion, and, as said in Hocks v. Sprangers, supra, at page 138 (89 N. W. 115), the practice has become reasonably well established that neither excluded a motion in the nature of a motion for a rehearing, as one to modify our judgment or mandate, at any time while our jurisdiction persists. It was in view of that anomaly that present Rule 42 was formulated. By its language it clearly includes the ^present motion to modify the final determination of this court, and the policy embodied in that rule is that all motions of that character, like motions for rehearing, must be made within the thirty days during which, in all cases, the records are required to be retained. True, such, rules do not take away our jurisdiction, but they limit and regulate the right of the litigant to invoke the exercise of such jurisdiction as we may have. Att’y Gen. ex rel. Cushing v. Lum, 2 Wis. 507, 510; Baker v. State, 84 Wis. 584, 54 N. W. 1003; Deuster v. Milwaukee St. R. Co. 89 Wis. 191, 194, 61 N. W. 766. True, the absolutism of Eule 42 is qualified by present Eule 21 reserving to the court the power in a proper case and for cause shown to enlarge the time within which any act may be done. We need not, however, and probably should not, in this case discuss the question whether respondent has shown proper cause for indulgence under that rule, since we have determined that we are wholly without jurisdiction to entertain his motion.

By the Court. — Motion to recall the record from the circuit court is denied, with $10 costs.

Siebecker and Timlin, JJ., dissent