Stonach v. Glessner

By the Court, Cole, J. That there was a good appearance in this cause by the plaintiffs in error, by their attorney, in the court below, we have no kind of doubt. They could not come into court and move for a judgment of nonsuit, because security for costs was not filed with the declaration, as required by the rules of the County Court, and upon discovering their mistake, withdraw from court, and claim they had made no appearance in the cause. This, certainly, would be trifling with the rights of parties and the dignity of courts. The appearance must be regarded as a general appearance in the cause. That being the case, they were entitled to notice of inquest or assessment of damages. I do not find anything in the rules of the County Court regulating the method of taking inquests, but still, I suppose notice should be given in that court unless expressly waived by the defendant. This is a safe and salutary rule of practice; it works no inconvenience to the plaintiff, and is very generally adopted. Circuit Court Rules, No. 13; 2 Wis. 492 ; 1 Bur. Prac. 396; 1 Tidd, 576; 6 Taunt. 458. The assessment of damages, therefore, in this cause, was irregular, and should have been set aside. Judgment of the County Court reversed, with costs, and cause remanded for further proceeding, according to law.