Friemark v. Rosenkrans

PiNNBT, J. Both the counsel for the plaintiff and for the defendant, at different stages of the action, have insisted that the notice of appeal was not sufficient to give the superior court jurisdiction; and whether it is sufficient or not is the principal question on this appeal. 1. The statute (sec. 3754, S. & B. Ann. Stats.) provides: “ The appellant or some person authorized by him must, within twenty days after judgment rendered, make and pre [363] sent to the justice before whom the action was tried, or his successor in office, or any other justice then lawfully having custody of the docket containing such judgment, a notice of appeal, together with an affidavit that the appeal is made in good faith and not for the purpose of delay,” etc. The statute does not prescribe either the form or substance of the notice. It is required that it shall be “ a notice of appeal,” and it is not necessary that it should be served on the opposite party. Its sole purpose seems to be to convey to the justice to whom it is delivered, and whose duty it will be to make return to the appellate court, reasonably definite, reliable, and written information that an appeal is taken, by whom taken, and of the cause in which, and of the judgment from which, it is taken. Morris v. Brewster, 60 Wis. 229. The failure to join with the name of the plaintiff in the title of the action, at the head of the notice, the name of his nest and nearest friend, Michael Friemark, by whom the action is prosecuted in the name of the infant, Joseph Friemark, is not, we think, a material omission. The real party plaintiff is the infant, Joseph Friemark; and that the defendant, whose name is stated in full in the title of the notice, signed it using his initials only for his Christian name, thus, “ F. M. Bosenkrans,” cannot be regarded as a material defect, or more than a merely technical and immaterial variance. The remaining objection is that the notice in designating the judgment, as to the amount of damages and costs, stated the damages correctly, but stated the costs at $24.25 instead of $30.76, the true amount. The notice should be reasonably certain, and we think that the notice in this case is a substantial compliance with the statute, and sufficiently identifies the party appealing, the case in which, and the judgment from which, it is taken; that the particulars are made sufficiently certain; and that the error in designating [364] tbe amount of costs, which are an incident • of, and yet a part of, the judgment, does not render it fatally'defective. The notice furnishes substantial and sufficient information of all the particulars required to be stated in it. Statutory provisions in regard to appeals are remedial in their character, and ought to be liberally construed, and certainly not so stoictly as to unnecessarily hamper or defeat the beneficial purposes for which they are intended. The date of the judgment, title of the court and of the cause, sufficiently identified the judgment appealed from. 2. There is nothing in the case tending to show that the defendant had any defense whatever to the action. Beyond all question his own testimony establishes the fact that he was guilty of an assault and battery on the person of the plaintiff. There is no evidence tending to show that it was committed in the' reasonable defense of his property. The matter to be passed on by the jury was simply the amount of damages which the plaintiff ought to recover; and although a motion was made for a new trial it was not assigned as a ground for it that the damages were excessive. The jury were required to state whether any or what sum was allowed by them for punitory damages, and what for compensatory damages, and they fóund a verdict for compensatory damages only. 3. Eor the reasons already stated, it is manifest that neither the language used by the trial judge to the appellant’s counsel, nor the violent and irrelevant language of the plaintiff’s counsel in addressing the jury, and here complained of, could have operated to the prejudice of the defendant. If there existed good reason for believing that the case of the defendant had been prejudiced by these statements, or either of them, we would not hesitate to grant a new trial. In the trial of causes the counsel is the representative, for the time being, of his client, as the sole organ of com [365] munication between Mm and the court and jury, and the guardian of his interests; and while it is within the province of the court to rebuke or censure counsel in the presence of the jury for irregularity of practice or misconduct occurring in the particular case, yet to reproach him, or use harsh or censorious language to him, in relation to what he may have done in other cases and on other occasions, is manifestly improper. Neither counsel nor his client ought to anticipate such statements or come to the trial prepared to go into an explanation of them in order to avoid their prejudicial effect upon the case on trial. The language used by counsel to the jury was clearly irrelevant, and ought not to have been permitted on that account, to say nothing of the violent imputations it must have been intended to make against the defendant or his counsel; for we cannot see that any others were intended by it. It referred wholly to matters not occurring at the trial, and not within the scope of the testimony before the court and jury; to matters which would appear “ if the veil that covers the private lives of some men were lifted.” ¥e cannot agree with the trial judge in his ruling that the counsel in this case was within the proper scope of his duty in making such a statement, or that it was a mere matter of good or bad taste. The place and occasion required that counsel should keep within the proper limits of his rights and privileges as such. The dignity of proceeding and propriety of speech that are essential to the administration of justice will be best maintained by restraining counsel in passing the proper limits of discretion. Thomp. Trials, §§ 955-958. a The duty of the trial judge to repress needless scandal and gratuitous attacks on character is a very plain one, and good care should be taken to discharge it fully and faithfully.” Rickabus v. Gott, 51 Mich. 227-229. This court has on a former occasion declared itself on this subject in no uncertain or hesitating terms. Brown v. [366] Swineford, 44 Wis. 282. We do not think that there is any reason for holding that the defendant has been prejudiced by these statements; but, as they appear in the record, we have felt it our duty to notice them with disapproval. By the Court.— The judgment of the superior court of Milwaukee county, appealed from, is affirmed.