Hyde v. Gleichman

Pee CueiaM. A motion is made by the respondent to dismiss the appeal herein for the reason that no return has been made by the clerk. This motion is met by one on the part of, the appellant for a rule or order on the clerk of the circuit court of Kenosha county to make return on the appeal. It appears from the affidavits read upon the motions, that the 517 appeal is from an order of tbe circuit court of Kenosha county overruling tbe demurrer of the plaintiff to a portion of tbe answer. There was an issue of fact likewise raised by tbe answer. About tbe 13th of November, 1876, tbe plaintiff duly perfected an appeal from tbe order overruling bis demurrer. No stay of proceedings was granted. The cause was reached on tbe calendar and called for trial aboubthe 23d of November. Thereupon tbe appellant made application for a change of venue on account of tbe prejudice of tbe circuit judge. Tbe venue was changed to Milwaukee county, and all tbe papers in tbe cause were transmitted to tbe clerk of tbe circuit court of that county. Under these circumstances, it is very obvious that an order on tbe clerk of Kenosha county to make return would be quite fruitless and unavailing. Tbe record has passed out of bis custody, without any fault on bis part. There is no law which authorizes tbe clerk to regain possession of tbe record so as to make tbe proper return. Haas v. Weinhagen, 30 Wis., 326. The appellant has lost tbe benefit of tbe appeal as a consequence of tbe record having been transmitted to tbe clerk of tbe circuit court of Milwaukee county before return was made. Haas v. Weinhagen, supra. Eor these reasons tbe motion made by tbe appellant for an order on tbe clerk of Kenosha county is denied. The motion to dismiss tbe appeal is granted.