Punch v. Town of New Berlin

Cole, J. The motion to dismiss this appeal must be granted. Tbe appeal is from an order of a circuit judge, made at chambers, denying an injunction, and was undoubtedly intended to be taken under ch. 139, Laws of 1861. Now, assuming that it is competent for the legislature, under our constitution, to provide for appeals directly to this court from orders made by a circuit judge at chambers (a point upon which we do not wish to be understood as expressing any opinion), still it is obvious that the party appealing must comply with the statute. He did not do so in this case. The statute provides that the party interested in procuring the injunction must give immediate notice of apjeeal to the opposite party, and tender within three days thereafter to such party a written -undertaking, with sufficient surety in such sum as the court or judge may direct. The order in this case was made on the 13th of March, and it appears that no undertaking was served until after the 20th of that month. In order to perfect the appeal, the plaintiffs should have given immediate notice of an appeal, and made and tendered within three days, to the adverse party, a written undertaking in such sum as the judge might direct. We do not think there was any waiver of this irregularity in taking the appeal, by the respondents noticing the cause for argument. By the Court. — Appeal dismissed.