Herrick v. Racine Warehouse & Dock Co.

Ryan, C. J. Section 9 of the appeal act limits the time of appeal from judgment to two years. And this court has no power to amend the statute by enlarging the time. Van Steenwyck v. Miller, 18 Wis., 320. If we had any discretion, we should assuredly exercise it in a case like this, where the right of appeal appears to have been lost by mere inadvertence. But, to give this court jurisdiction of an appeal, the return of the court below must show an appeal perfected within the time and in the manner prescribed by the statute. Yates v. Shepardson, 37 Wis., 315; Eaton v. Supervisors, 42 id., 317. The learned counsel of the appellant cited several cases in New York, holding that respondents had waived the right of objecting that the appeal was taken too late. It is difficult to comprehend how a party can cure want of jurisdiction in the court to entertain a proceeding, by waiver. And there appears to us to be an unaccountable inconsistency in the cases in New York on the question.' For it is there held that the courts possess no power, directly or indirectly, to enlarge time for appeal. Humphrey v. Chamberlain, 11 N. Y., 274; Wait v. Van Allen, 22 id., 319. It appears to follow that if a court cannot restore its own jurisdiction, lost by statutory limit, the parties cannot restore it by consent. For it is not jurisdiction of the person, but of the] proceeding. And we are unable to comprehend how that could be done by the implied consent of waiver, which cannot by express consent. By the Court. — The appeal is dismissed.