Davison v. Brown

Cassoday, O. J. This action was commenced in the municipal court for Dane county to recover $150 damages for the wrongful and unlawful taking and converting of a threshing machine belonging to the plaintiff. The defendant, by his answer, justified the taking and conversion as sheriff, under a judgment and execution against Johns & Farring-ton. The plaintiff recovered judgment in the lower court, and the defendant appealed therefrom to the circuit court, where the cause was retried. At the close of the trial, and on February 2, 1895, the jury returned a verdict in favor of the defendant of no cause of action. Thereupon, and on the same day, the plaintiff’s counsel moved the court, at the same term and upon the minutes thereof, to set aside the verdict and grant a new trial. February 4, 1895, and before the determination of said motion, judgment was filed, entered, and docketed in favor of the defendant and against the plaintiff for $100.25, costs and disbursements as taxed and allowed. Subsequently the plaintiff’s counsel argued said motion before the court to set aside said verdict and for a new trial, which motion was heard by the court February 25, 1895, and during the same term. Thereupon the court, by order, granted said motion for the reasons therein stated. From that order the defendant gave notice of appeal to this court, June 24, 1895. The motion to set aside the verdict and grant a new trial ■ was made two days before the judgment was entered, but was not determined until twenty-one days after the entry and docketing of that judgment. There is no pretense that the judgment was ever set aside, nor that there was any attempt to set it aside. On the contrary, proceedings were [87] .stayed thereon March 9, 1895, and the undertaking on this •appeal recites that the judgment was duly entered. There being no direction to the contrary by the court, the statute contemplated the entry of the judgment immediately upon the rendition of the verdict. R. S. sec. 2861. See the opinion of Mr. Justice Pinitev in Wheeler v. Russell, post, p. 135. The appeal from such an order, under such circumstances, is certainly anomalous in practice. At common law, the taxing of costs and signing final judgment were considered .as contemporaneous acts; and therefore the attendance of the opposite attorney upon such taxation was holden to be .an admission that the judgment was properly signed, and so it could not afterwards be objected to as having been signed too soon. 2 Tidd, Prac. 930. “Judgment,” said that learned author, “ is the conclusion of law, upon facts found or admitted by the parties, or upon their default, in ‘the course of the suit.” Ibid. To enable a party to make a motion for a new trial and have the full effect of it, it was .generally necessary to obtain an order staying the proceedings of the opposite party. 1 Burrill, Prac. 261, 467. The early practice under the Code of New York required the motion to be made before judgment. Jackson v. Fassitt, 33 Barb. 645; Barnes v. Roberts, 5 Bosw. 78; Haynes, New Trial & App. § 3, and cases there cited. Where the moving party delayed until after judgment, the practice was to move to set aside the judgment as well as the verdict, and for a new trial, and then only as a matter, of favor. Ibid.; Nash v. Wetmore, 33 Barb. 155; Barnes v. Roberts, 5 Bosw. 73; Gurney v. Smithson, 7 Bosw. 396; Anderson v. Dickie, 17 Abb. Pr. 83; Whitney v. Karner, 44 Wis. 566. This court has held that the entry of judgment pending a stay of proceedings on the part of the opposite party was a mere irregularity, and that the judgment was not void for that reason, even where it was entered by the clerk in vacation. Egan v. Sengpiel, 46 Wis. 703. Assuming that the entry of the [88] judgment pending the motion for a new trial, in the case at bar, was irregular and improper, yet the judgment cannot be regarded as void for that reason. Ibid.; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 86. The case presented is not under sec. 2832, R. S. Turner v. Leathem, 84 Wis. 633. It is at least very doubtful whether the order granting a new trial after judgment, in the case at bar, would have-been appealable, even had ch. 212, Laws of 1895, never been enacted. However that may be, it was certainly not appeal-able after the passage of that law. Prior to the passage of that act, subd. 3, sec. 3069, R. S., expressly authorized an appeal from an order which granted or refused a new trial ; but the very object of the chapter mentioned was to limit appeals, and for that purpose it intentionally omitted from that third subdivision the words “when it grants or refuses-a new trial.” True, the order in question was made some two months prior to the time when that act went into effect but this appeal was not taken until more than two months after that enactment. The right to an appeal from such an order is purely statutory. There was no vested right therein. It may be taken away even pending an appeal therefrom: This has frequently been adjudged by this and other courts. Dillon v. Linder, 36 Wis. 344; Farrell v. Drees, 41 Wis. 186; Rood v. C., M. & St. P. R. Co. 43 Wis. 146; Freiberg v. Singer, 90 Wis. 608; Ex parte McCardle, 7 Wall. 506. We must hold that, at the time this appeal was taken, the-order in question was not appealable. By the Gowrt.— The appeal is dismissed.