Platto v. Western Union Telegraph Co.

Lyoit, J. Unless the plaintiff’s appeal from the judgment of the justice was properly dismissed under sec. 3Y66, R. S., the order of dismissal must be reversed. That section reads thus: “ If neither party shall bring the appeal to a hearing in the appellate court before the end of the second term after filing the return of the justice therein, such court shall dismiss the appeal unless it shall continue the same by special order for cause shown.” What occurred at the first term after the justice filed his return to the appeal, that is, at the December term, 1883, is entirely immatei’ial. The proceedings in the cause at the second term thereafter, to wit, the March term, 1884, are alone important. At such March term a stipulation for a continuance over the term, signed by the attorneys for both parties, was filed. This of itself was good and sufficient cause for a continuance without reference to the reasons which prompted ’the attorneys to enter into the stipulation. But were it necessary to look behind the stipulation for cause of continuance, we find ample cause therefor in the sudden death during the same term of Mr. Finch, who seems to have had charge of the case for the defendant. The court continued the case, therefore, “for cause shown,” and the record showed the fact when the appeal' was dismissed. [343] The order for such continuance, whether formally written out in the record or not, is a “special order” within the intent and meaning of the statute. Hence at the March term, 1884, the court did everything required by the statute to save the appeal, and its action in the premises is res adjudicate/, in the case. The court could not properly rule at a subsequent term that cause was not shown for a continuance over the March term, 1884; and if another special order to the effect that cause was shown was necessary to save the appeal, such order should have been made. ¥e think, however, that one order in that behalf is quite sufficient, and we hold that if the appellate court at the second term after the justice makes return to an appeal continues the case for cause over that term, the requirements of the statute are complied with and the appeal saved. From thenceforth the case, as regards laches of the appellant, stands on the same footing as one originally brought in such appellate court. If an order thus saving an appeal is not made at such second term, it must be obtained at a subsequent term, or the appeal will be dismissed. See Holt v. Coleman, 61 Wis. 422, and cases cited in the opinion. By the Court.— The order of the county court dismissing the appeal is reversed, and the cause remanded for further proceedings according to law.