Midlothian Iron Mining Co. v. Dahlby

BaRdjgeit, J. The motion to dismiss this action was based upon sec. 2811a, Stats. 1898. This section provides that the circuit and superior courts may dismiss any and all actions or proceedings pending therein in which issue has been joined and which shall not be brought to trial within five years after the commencement of such action or proceeding. The order is an intermediate one, not involving the merits and necessarily affecting the judgment. The appeal is from the judgment. This court will not review such intermediate orders unless excepted to and the order, with the exceptions, brought into the record by a proper bill of exceptions. Keller v. Gilman, 96 Wis. 445; Donkle v. Milem, 88 Wis. 33. The bill of exceptions fails to show any exception taken to-the order. Hence we cannot review it. On the merits, the only objection raised by defendants is that the complaint does not state a cause of action. But this. [197] question is not before us. Uo objection to tbe complaint on that ground was ever taken. The only objection appearing in the record is to certain scraps of evidence, on the ground that it was not admissible under the pleadings. If the defendants believed in good faith that the complaint was insufficient, it was their'duty to challenge it by a demurrer or objection to any evidence thereunder, so that the trial court might have an opportunity to rule thereon, and the other side a chance for amendment. This was not done, and the defendants are therefore without any foundation to base their contention upon. The evidence offered fully sustained the conclusion of the trial court that defendants’ tax deed was without legal basis. The treasurer’s notice of sale stated that the lands would be sold at a time designated, “ in the town of Bayfield,” without stating where. Sec. 1130, Stats. 1898, says that such notice shall state that such lands will be sold at public auction “ at some public place, naming the same, at the seat of justice of the county.” The notice is flagrantly bad, and the deed based upon it conveyed no title. Other defects in the record leading up to the sale were shown, but, inasmuch as counsel for defendants do not attack the court’s findings, it is unnecessary to pursue this discussion. By the Court.— The judgment is affirmed.