Bonin v. Green Bay & Minnesota Railway Co.

Ryan, C. J. We should deplore a failure of jurisdiction to retain this appeal and restore it to the calendar. For the reversal under the rule, for nonappearance for the respondent, when the cause was called in its order, was due to-our own failure to ascertain positively whether the counsel for the ap [212] pellant had printed and served his ease and brief, to entitle him to the reversal. We assumed, that counsel, taking advantage of his opponent’s failure to comply with the rule, had himself complied with it. , In this it now appears that we were mistaken. We trust that we may not again be so misled. We were at first apprehensive that this motion might be governed by Pierce v. Kelly, 39 Wis., 568. But a little reflection satisfied ns that the cases are clearly distinguishable. Pierce v. Kelly had been heard, and dismissed upon hearing. The remedy of the appellant in that’case, if any he had, was, as in any case of dismissal upon hearing, by ordinary motion for rehearing under rule 20. And because he failed to make that motion within thirty days after judgment, the court lost jurisdiction of the appeal; and the order to retain the record was not within the statute. In this case, however, the appeal has not been heard. The judgment was reversed under rule 17, without hearing. And the present motion is in effect for the hearing of the appeal. In such a case, the ordinary motion for rehearing would be unavailing, because no affidavit, nothing but the record and briefs founded on the record only, could be considered on the motion. A motion like the present ought properly, and indeed necessarily, to be founded on affidavit and made orally at the bar. And if not granted within thirty days after judgment, it is sufficiently in the nature of a motion for rehearing, to authorize the order retaining the record within the statute. Indeed, the rules are defective in not providing for such a motion, as in the nature of a motion for rehearing, so as to authorize an order retaining the record. And it will be the practice hereafter, when such a motion is made, in such a case, within thirty days after judgment, to treat it as a motion in the nature of a motion for rehearing, and to direct an order retaining the record until the determination of the motion, as was done in this case. By the Court. — The motion is granted.