Tilley v. Washburn

64 N.W. 312, 91 Wis. 105, 1895 Wisc. LEXIS 8

• Court: Wisconsin Supreme Court
• Decided: October 1, 1895
• Status: Published

Opinion

Cassoday, O. J.

It appears from the record that April 18, 1895, a money judgment was entered in this action in the circuit court, in favor of the plaintiff, for $1,029.04; that the defendant thereupon obtained a stay of execution for ninety days, in order to make a bill of exceptions and take .an appeal; that the ninety days expired on or about July 18, 1895; that on or about August 22, 1895, the plaintiff issued execution upon said judgment, and on the following dajr levied upon a large amount of personal property; that August 21, 1895, the defendant duly appealed from such judgment, and perfected the same by giving the undertakings prescribed in secs. 3049, 3053, E. S.; that August 29, 1895, all papers in the case were filed in this court; that September 10, 1895, the defendant demanded from the sheriff the property so levied upon, but he refused to surrender the same.

Upon the facts stated, we must hold that the perfecting of the appeal and giving the undertakings mentioned operated to stay all further proceedings on said judgment (sec. 3066, E. S.), but did not, if so facto, recall the execution or release the levy. First Nat. Bank v. Rogers, 13 Minn. 407; S. C. 15 Minn. 381; Robertson v. Davidson, 14 Minn. 554; Stricker v. Wakeman, 13 Abb. Pr. 85. These decisions are under statutes similar to our own. This court, however, has inherent power to recall the execution and release the levy upon terms that are just and equitable. Levy v. Goldberg, 40 Wis. 308; Janesville v. Janesville W. Co. 89 Wis. 159, and cases there cited.

By the Gowrt.— Accordingly, it is hereby ordered that the ■appellant’s motion be, and the same is hereby, granted on ■condition that he first pay to the sheriff his fees in full on said execution, and $10 costs to the attorney of the respondent, and the fees of the clerk of this court on this motion.