Silverman v. Fidelity & Casualty Co.

Wnsrsnow, J. The circuit court dismissed the appeal and remanded the cause “for further proceedings in accordance with the findings.” This is practically a direction to the county court to vacate the judgment appealed from, for it is plain that no proceedings in accordance with the findings could be taken which did not include the vacation of that judgment. The sole question presented on this appeal is whether that part of the judgment remanding the cause “for further proceedings in accordance with the findings” can be sustained. This question must be answered in the negative, [462] botb on reason and authority. There can be no doubt that, in the absence, at least, of statutory provisions to the contrary, the dismissal of an appeal removes the case from the appellate court and places the parties in the same condition ,as they were before the appeal was taken. Falvey v. O’Brien, 17 Wis. 188; Elliott, Appellate Procedure, § 535. Sec. 4037, Stats. 1898, regulating and prescribing the relief to be administered by the appellate court in case of an appeal from the county court, does not affect the question here presented. It will not be necessary to do more in this court than to reverse the order denying the motion and also to reverse the part of the judgment appealed from. This will leave the judgment below simply a judgment of dismissal. By the OourL — The order appealed from and that part of the judgment appealed from are reversed.